1982 PLP 380 (PLC)

House Rent: Rs. 33 Conveyance Allowance: Rs. 35 Local Allowance: (Specified places only) Rs.-20 TOTAL Rs. 253 Personal Pay : Rs. 11.50 TOTAL Rs. 264.50" Another letter dated 13th July, 1973 (Exh. P D) was issued by the National Bank of Pakistan, Principal Office, Lahore, relevant portion from this letter is reproduced below :- "Head office have directed that pay of those employees who had been issued appointment letters before 17th October 1972 but had joined duty after 17th October 1972, should be fixed vide their circular No. OPS: PER/73116 dated 31st January 1973." On 21st March 1974 letter No. ADM/PER/74/17 (Exh. P E) was issued by the Head Office, Karachi. This letter modified the earlier first cir cular dated 31st January 1.973 (Exh. P C). According to his modifica tion the fixation of pay of employees appointed between the period from 17th October 1972 to 24th January 1973 was to be made on the same lines as done in the case of employees already in service of the Bank as at 16th October, 1972. Vide letter dated 10th December 1974 (Exh. P-2/ I) it was decided by the Head Office that the employees who were ap pointed between 17th October 1972 and 24th January 1973 but had reported for duty after 24th January 1973 were not eligible for the benefit of merger of ad hoc and special allowance. It may be mentioned here that the dispute in the instant case is about the benefit of merger of ad hoc relief and special allowance.

2. Mr. Mohammad Javed Khan, respondent reported for duty on 26th January 1973. According to the Management the respondent from the very beginning was employed in new scale of pay fixed by the Head Office in their letter dated 24th January, 1973 and he was not given benefit of the merger of ad hoc relief and special allowance from the day of his appointment viz. 26th January, 1973. He continued receiving new scale of pay without any protest. However, on 18th July 1975 he felt ag grieved and filed a petition under section 25-A of the Industrial Relations ordinance, 1969 before the Junior Labour Court which subsequently stood transferred to Punjab Labour Court No. 1, Lahore. The Labour Court after recording the evidence of the parties, vide. impugned decision dated 5th November 1976, accepted the petition and directed the Management that Mohammad Javed Khan, respondent be allowed the benefits of merger of ad hoc relief and special allowance in the fixation of his basic pay in the revised scale of pay. The Bank Management filed an appeal against the impugned decision of the Labour Court. My learned pre decessor accepted the appeal on 10th August, 1977, set aside the decision of the Labour Court and dismissed the petition of the respondent filed under section 25-A of the Industrial Relations Ordinance, 1969 on the ground that the petition was barred by time. The respon dent challenged the order of this Tribunal through constitutional petition in the High Court which accepted the same and declared the order of this Tribunal dated 10th August 1977 to be without lawful authority and of no legal effect. The Bank Management then approached the Supreme Court which vide judgment dated 13th November 1979 dis missed the appeal but remanded the case to this Tribunal to dispose of the appeal on merits.

3. I have heard at length the counsel for the parties and have also perused the relevant material available on the record. It may be men tioned here that this appeal could not be disposed of within the period specified by the Supreme Court for the reasons that the parties volun tarily agreed to various adjournments, first, for mutual settlement and then for arguments which took considerable time, covering several hearings.

4. It is vehemently contended by Ch. Altaf Hussain, learned coun sel for the appellant Bank that Mohammad Javed Khan, respondent had no right guaranteed by or under any law or award or settlement, as contemplated by section 25-A of the Industrial Relations Ordinance, 1969. According to the counsel before invoking the jurisdiction of the Labour Court under section 25-A of the Industrial Relations Ordinance, 1969, it was necessary for the respondent to establish that he had a right guaranteed under some law or settlement, etc. which has been infringed. The claim of the respondent in the instant case is that the terms of service contained in his appointment letter dated 17th January 1973 are guaran teed under Standing Order 2-A of the W. P. Industrial and Commer cial Employment (Standing Orders) Ordinance, 1968. The next question which directly falls for determination is whether terms and conditions contained in the appointment letter, could be enforced under section 25-A of the Industrial Relations Ordinance, 1969. In other words whether such terms of service contained in appointment letter can be said as right guaranteed by law, settlement or award. The counsel for the appellant-Banli has cited several authorities on the point including 1974 P L C Note 6 at p. 3, decided by late Justice Inamullah Khan as Appel late Tribunal, holding that terms of appointment of a person cannot be said to be a right guaranteed or secured under any law or any award or settlement but terms agreed between the parties under an agreement can be the subject-matter of a civil suit. In 1974 P L C Note 57 at p. 31 Justice M. Jamil Asghar, Appellate Tribunal, following the above authority of late Justice Inamullah Khan has held that term of appointment is not a right guaranteed or secured under any law or award or set tlement. Even the same learned Presiding Officer who passed the impugned decision in the instant case, subsequently in 1978 P L C 301 has held that promotion or terms of appointment could not be said to be right guaranteed or secured under any law, award or settlement and consequently application under section 25-A of the Industrial Relations Ordinance, 1969 in respect of grievance regarding such matters was held not competent. The learned counsel has further relied upon P L J 1976 Kar.

11. The counsel for the respondent has not been able to cite any authority to the contrary but relies upon the following observation of the Labour Court:- "It is mandatory for an employee to provide an order in writing to show the terms and conditions of service of a workman at the time of his appointment This is so required under Standing Order 2-A of the Standing Orders Ordinance, 1968. The appointment letter (copy Exh. P. A.) containing the terms regarding the payment of ad hoc relief and special allowance has thus a statutory backing."

5. According to the learned counsel for the respondent the terms and conditions of service of the respondent, contained in the appointment letter dated 17th January, 1973 should be deemed as guaranteed to him under Standing Order 2-A of the Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. While according to the opposite counsel the Labour Court before relying upon Standing Order 2-A of W. P. Industrial & Commercial Employment (Standing Orders) Ordi nance, 1968, should have decided whether the said Ordinance, is appli cable to the employees of the National Bank of Pakistan or not. The next question which therefore arises is whether W. P. Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, is applicable to the National Bank of Pakistan or not. As regards the application of the W. P. Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, Ch. Altaf Hussain relies upon the proviso to section 1 (4) (c) of the said Ordinance and contends that since National Bank of Pakistan is carried on by or under the authority of the Federal Government and it has got its own statutory Rules of service, conduct or discipline for its employees, therefore, the said Ordinance, would not be applicable to the employees of this Bank. He further argues that al though originatly this Bank was established under the National Bank of Pakistan Ordinance, XI of 1949 yet, after the Banks (Nationalization) Act, 1974, this bank completely came under the control and authority of the Federal Government. Under section 5 of the Banks (Nationalization) Act, the ownership, Management and control of all banks stood transferred to and vested in the Federal Government on the commencing day. Under section 11 each nationalized Bank was to have an Executive Board- consisting of a president and not less than two and not more than four other members to be appointed by the Federal Government. The general direction and superintendence of the affairs and business of such a bank shall vest in its Executive Board.

6. It may be mentioned that earlier the National Bank of Pakistan (Staff) Service Rule, 1953, were made by the Central Board under Bye-laws 18 (a) (iii) of the National Bank of Pakistan Bye-laws, with the prior approval of the Central Government. Subsequently the National Bank of Pakistan (Staff) Service Rules, 1973 were framed. Again the National Bank of Pakistan (Staff) Service Rules; 1980 were made by the Executive Board under Bye-law 18 (a) (iii) and (iv) of the National Bank of Pakistan Bye-laws read with section 11 (4) of the Banks Nationali zation) Act, 1974. According to the learned counsel for the appellant Bank these rules are the Statutory Rules of Service, Conduct or Discipline governing the service of the employees of this Bank. It is agreed by both the parties that the present case is covered by the National Bank of Pakistan (Staff) Service Rules, 1953 as the appointment letter was issued to the respondent on 17th January, 1973. The counsel for the appellant Bank further contends that the appellant-Bank was constituted under the National Bank of Pakistan Ordinance XIX of 1949 and is carried on by or under the authority of the Federal Government. After the Bank (Nationalization) Act, 1974 this Bank completely came under the control and authority of the Federal Government without any share or control from any private individual. It is argued that National Bank of Pakistan was covered by proviso to section 1 (4) (c) of the W.P. Industrial and Commercial Employment (Standing Orders), Ordinance, 1968, both before its nationalization as well as after nationalization as it is a commercial establishment which was and is carried on by or under the au thority of the Federal Government and had and has statutory Rules of service conduct and discipline governing its employees. The National Bank of Pakistan is not a mere banking Company but was given the status of a body corporate by the statute having perpetual succession and common seal and can sue and be sued by the said name. It was authorised to do specific banking business under section 25 and pro hibited from doing certain business by virtue of section 25 of the National Bank of Pakistan Ordinance, XIX of 1949. The Central Board of Directors was given the power under section 32 to make rules regarding recruitment of the officers and staff of the Bank includ ing terms and conditions of their service, etc. Reliance in this behalf is placed upon Ashraf Ahmad's case (1970 P L C 497). This was also a case against the National Bank of Pakistan and it was held by my learned predecessor-in-office that this Bank was carrying on business under the authority of the Federal- Government and therefore W.P. Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, was not applicable. Further reliance is placed upon 1980 P L C

964. In this case it has been held by the' Sind Labour Appellate Tribunal (Justice Z. A. Channa) that the National Bank of Pakistan was set up under National Bank of Pakistan Ordinance, XIX of 1949 and was being carried on by or under the authority of the Federal Government through a Board of Directors appointed by the Federal Government and its employees were governed by the National Bank of Pakistan (Staff) Service Rules, 1958, framed under the statute and therefore was not within ambit of W. P. In dustrial & Commercial Employment (Standing Orders) Ordinance, 1968. Justice Ghulam Rasool Sheikh, Sind Labour Appellate Tribunal in Anwar ul-Unsan Farooqui's case (1979 P L C 120) has also held that the W. P. Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, is not applicable to National Bank of Pakistan as it has its own statutory rules. The Supreme Court while discussing the phrase `performing functions in connection with the affairs of the Federation or a Province', in Salah-ud -Din's case (P L D 1975 S C 244) has given the example of National Bank of Pakistan as a statutory corporation in the following words:- "Now, what is meant by the phrase "performing functions in connec tion with the affairs of the Federation or a Province". It is clear that the reference is to Governmental or State functions, involving, in one form or another, an element of exercise of public power. The function may be the traditional Police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare education, public utility services and other State enterprises of industrial or commercial nature. Ordi narily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for under taking many such functions particularly in the industrial and com mercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control of or over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedure by appropriate statutes, and by finding funds for financing their activities. Example of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Au thority, the National Shipping Corporation, the Agricultural Develop ment Bank of Pakistan and the large number of Universities functioning under their respective statutes." Reliance is also placed upon the following authorities :- 1976 PLC 555; 1976 P L C 924 ; 1979 PLC 293; 1979 PLC 543; 1980 PLC 272; 1980 PLC 515; 1980 PLC 521 ;1980 PLC 758; 1980 PLC 568 and 1981 S C M R

81. The learned counsel for the appellant Bank has also relied upon leave granting order dated 11th March, 1981 of the Supreme Court in C.P. No. 648 of 1979. On the other hand the arguments advanced on behalf of the respon dent by Mian Anwar Khalid, Advocate, is that National Bank of Pakistan (Staff) Service Rules 1953, or subsequent rules are neither the statutory Rules not the Bank is carried on by or under the authority of the Federal Government as required under proviso to section 1 (4) (c) of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to the learned counsel, the Rules of the Bank are not published under section 22 of the General Clauses Act. As, regards the publication of the Rules in the gazette, it is argued by Ch. Altaf Hussain, Advocate, that under section 23 of the General Clauses Act, notification of the Rules is necessary only in case a central enactment or regulation gives power to make rules or bye-laws expressly subject to the condition that the Rules or bye-laws will be made after previous publication and it is only in such cases that the publication in the official Gazette is necessary. Reliance in this behalf is placed upon 1970 S C M R

373. As mentioned above National Bank of Pakistan (Staff) Service Rules, 1953, were made with the prior approval of the Federal Government. The learned counsel for the respondent has only relied upon 1975 P L C 600, which is a case decided by the Labour Court No. 1, Lahore. No other authority has been cited either in support of the claim of the respondent or in rebuttal of the arguments advanced by the opposite party.

7. I have given my anxious consideration to the facts and circum stances of the case and have also examined the authorities cited by the parties and reached the conclusion that were inclusion of certain terms and conditions of service of the respondent in his appointment letter dated 17th January 1973 (Exh. P-A) without adjudication by an appropriate judicial authority, does not create a right which can be said as guaranteed or secured to him by or under any law. It may be a contractual right enforceable through a civil Court. Further such terms of service contained in an appointment letter do not amount to settlement as defined under section 2 (xxiv) of the Industrial Relations Ordinance, 1969, because the terms and conditions of service in appointment letter agreed between the bank Management and the respondent were no arrived at in course of any conciliation proceedings nor it is an agreement signed by both the parties, whose copy was sent to the Provincial Govern ment, the conciliator or any other authority. The result is that the terms and conditions contained in the appointment letter cannot be enforced under section 25-A of the Industrial Relations Ordinance, 1969. Further, I am of the view that the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is not applicable to the employees of the National Bank of Pakistan as the Bank is carried on by or under the authority of the Federal Government and it has got its own statutory rules of service, conduct and discipline governing its own employees. Even under his appointment letter dated 17th January, 1973 (Exh. P-A) the services of the respondent were to be governed by the National Bank of Pakistan (Staff) Service Rules, 1953, and consequently bound by the said Rules. The respondent has based his claim only on he is the Standing Order 2-A of W.P. Industrial and Commercial Employ ment (Standing Orders) Ordinance, 1968, which is not applicable to the present case and he has not alleged violation of any other statute or rules, etc. affecting his right. , The result is that the petition under section 25-A of the Industrial Relations Ordinance, 1969 of the respon dent was not maintainable. Consequently this appeal is accepted, the impugned decision of the Labour Court is set aside and the grievance petition of the -respondent filed under section 25-A of the Industrial Relations Ordinance, 1969, is dismissed. Appeal allowed.