2013 PLP 113 (PLC)

MUNIR AHMED CHAUDHARY, J.-- All the three above captioned writ petitions filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, relate to the same proposition, so, these writ petitions are disposed of through a single judgment.

2. Brief facts giving rise to the instant writ petitions are that three officers of the petitioner bank Malick Muhammad Sharif (respondent No.3 in Writ Petition No.153), Mirza Muhammad Yousuf (respondent No.3 in Writ Petition No.152) and Muhammad Akram (respondent No.2 in Writ Petition No.164) were terminated from their services by the petitioner bank authorities. All the three officers challenged their termination before the learned Labour Court Mirpur. Two of them Malick Muhammad Sharif and Mirza Muhammad Yousuf were reinstated, while the application filed by the third officer Muhammad Akram under section 30 (I.R.O.) was refused. The petitioner bank filed appeal before the learned Labour. Appellate Tribunal against the judgment of Labour Court Mirpur regarding Malick Muhammad Sharif and Mirza Muhammad Yousuf, while the third officer Muhammad Akram also preferred an appeal before the learned Labour Appellate Tribunal. Two appeals filed by Malick Muhammad Sharif and Mirza Muhammad Yousuf were disposed of through a single judgment, while the third appeal filed by Muhammad Akram was disposed of through aseparate judgment by the learned Judge of Labour Appellate Tribunal. The appeals filed by the petitioner bank were dismissed and the appeal filed by one officer Muhammad Akram was accepted. As a result, all the three officers were reinstated with. all benefits. Feeling aggrieved, the petitioner bank filed three separate writ petitions challenging the judgment of the learned Judge Labour Appellate Tribunal which are under consideration presently.

3. Brief facts regarding the present controversy between the parties are that the said officers Malick Muhammad Sharif was inducted in the petitioner bank on 20-10-1971, Mirza Muhammad Yousuf was inducted on 12-12-1976 while 'Muhammad Akram joined the service in the petitioner bank on 19-9-1979. The allegation against Malick Muhammad Sharif and Mirza Muhammad Yousuf is that on 1-9-2002, when they were posted at Sokason Bhimber in 2002, they prepared a bogus guarantee of Rs.0.757 Million without any authority. They were proceeded against and ultimately. they were dismissed from service on 10-9-2003, while the other officer Muhammad Akram was posted at UBL Kala Dub Branch. An allegation of embezzlement was levelled against him and ultimately he was terminated from his service as well.

4. Arguments were advanced by the learned counsel for the parties. Mr. Muhammad Ayyub Sabir, Advocate, the learned counsel for the petitioner bank argued that the learned Labour Court and the learned Labour Appellate Tribunal had no jurisdiction regarding the present controversy. All the three officers are not workmen as defined in the provisions of law, so, they cannot approach the Labour Court at all. The present matter pertains to Service Tribunal. The learned counsel further argued that a law point can be raised at any stage. He requested to accept the writ petitions and to set-aside the judgments of the learned Labour Appellate Tribunal. The learned counsel referred the following precedents in support of his arguments: (1)1994 SCR 16(sic), (2) 1998 PLC (C.S.) 110, (3) 1999 CLC 840, (4) 2000 MLD 1683, (5) 1999 MLD 187, (6) 1999 PLC (C.S.) 1527, (7) 2002 PLC 163, (8) 2004 SCR 341.

5. While controverting the learned counsel for the petitioner, Mr. Muhammad Reaz Tabassam, Advocate, the learned counsel for the respondents/officers, contended that all the three officers have rejoined the bank and they have submitted their joining report on 27-6-2007. Now, they are drawing their salaries, so, the judgments delivered by the learned Labour Appellate Tribunal have implemented which cannot be challenged through the present writ petitions. All the officers are considered as workmen and they have a right to approach the learned Labour Court or to the learned Labour Appellate Tribunal for redressal of their grievance. The question of jurisdiction has not been raised before the Labour Court and petitioners have submitted the jurisdiction of the said Court. Now, petitioners cannot be allowed to raise this question. The judgments of the learned Labour Appellate Tribunal are in accordance with the provisions of law and facts. The learned Counsel requested to dismiss all the three writ petitions and referred the following precedents in support of his arguments. (1) 1996 MLD 355, (2) 1997 PLC 34, (3) 1996 SCR 367, (4) 1999 PLC 290 and (5) 2005 PLC 26.

6. After hearing the arguments advanced by the learned Counsel for the parties, I have gone through the record and the precedents referred to and relied upon by the learned counsel for the parties minutely. The following questions need to be resolved in the present matter: (i)????? Whether the affected employees of the petitioner bank are workmen as defined in the Industrial Relation Ordinance or not? (ii)????? Whether Labour Court has got jurisdiction to try the matter in controversy or not? (iii)???? Whether the proceedings of inquiry and dismissal of the officers of the petitioner bank has been conducted in accordance with provisions of law or not?

7. Firstly, the inquiry conducted against the officers Malick Muhammad Sharif and Mirza Muhammad Yousuf has to be considered, as their appeal was decided by the learned Judge Labour Appellate Tribunal through a separate and single judgment. The record reveals that the said officers were serving in the petitioner bank, who had no power to appoint or remove any employee of the bank. It is an admitted fact that any officer or employee who has got no power to hire and fire, that comes under the definition of workman. The Industrial Relation Ordinance provides that any workman can approach a Labour Court for redressal of his grievance, so, the said officers including the third officer Muhammad Akram are workmen as defined in the said Ordinance and they can approach the Labour Court for redressal of their grievance. The petitioner bank has been privatized, so, its employees are not civil servants and provisions of Civil Servants Act, 1973 are not attracted and applied in the present matter. Any controversy regarding employees of a bank has to be resolved under Industrial Relation Ordinance. Bank employees are debarred to approach Service Tribunal.

8. An inquiry against the said two officers Malick Muhammad Sharif and Mirza Muhammad Yousuf was conducted firstly, by Chaudhary Abdul Rasheed and thereafter by Abdul Jalil Khan. The record reveals that the petitioner bank had, knowledge of alleged misconduct on 26-12-2002. As the petitioner bank wrote a letter to Executive Engineer PWD to verify about the said guarantee issued by the said officers on 26-12-2002. The record also reveals that charge-sheet against the said officers was handed-down on 7-3-2003. It was mandatory that charge-sheet regarding misconduct must be handed-down within one month of the date of such misconduct or of the date of knowledge. This mandatory provision has been prnvide'd in section 15(4) of Industrial and Commercial (Standing Orders) Ordinance. The charge-sheet in the present matter was not handed-down and conveyed within one month. This principle has been laid down in 1991 PLC 914, 1991 PLC 111 and .2004 PLC

310. It is clear that the requirements of provisions,of law were not fulfilled by the Inquiry Officer.

9. Muhammad Akram, another affected officer was proceeded against by the petitioner bank regarding embezzlement and a charge of misconduct was levelled against the said officer. The inquiry report annexed as "PF" is an admitted document and no objection has been submitted by the petitioner bank or their counsel.. The said Inquiry Officer has recorded his findings that witnesses and record produced during the proceedings of inquiry are not sufficient and convincing to declare the accused guilty of the charge of misconduct. It was further reported that the said officer (Muhammad Akram) has been found only negligent. On this report and findings of the Inquiry Officer, the petitioner bank dismissed t e said officer for misconduct. This action of the petitioner bank and its officials is of course, coram-non-judice and without lawful authority.

10. The point of jurisdiction of the Labour Court was not raised before the learned Labour Court by the petitioner bank or their counsel. The case was contested by the petitioner bank before the Labour Court. So, after submission to the jurisdiction of a Court, question of jurisdiction cannot be raised at a belated stage. The relevant party did not raise this objection at the relevant time before the Labour Court, so, the said party would be precluded from doing so after the case was decided against that party.

11. The learned Judge of Labour Court has held that inquiry conducted against the officers Malick Muhammad Sharif and Mirza Muhammad Yousuf was against the provisions of law. The learned Judge Labour Court and the learned Judge Labour Appellate Tribunal have recorded concurrent findings regarding the said two officers. But the findings recorded by the learned Labour Judge regarding the third officer Muhanunad Akram have been declared against the facts and law by the learned Labour Appellate Tribunal. The inquiry report against Muhammad Aktam clearly indicates, that no sufficient and convincing proof regarding misconduct of the said officer was brought on record. The said officer was declared negligent only. If misconduct is not proved, the said officer could not be awarded a major penalty of termination of his services. The learned Judge of Labour Appellate Tribunal has recorded his findings which are based on sound and cogent reasons. All the three officers have been reinstated with full benefits by the learned Labour Appellate Tribunal. The findings of the learned Judge Labour Appellate Tribunal do not need any indulgence by this Court through constitutional inherent powers.

12. The precedents referred by the learned counsel for the respondents, reflect a guideline in support of his arguments but the precedents referred by the learned counsel for the petitioner have no conformity with the f.??????? ?f the present matter. In the light of what has been discussed above, all the three writ petitions stand dismissed with no order as to costs. HBT/20/HC(AJ&K)???????????????????????????????????????????????????????????? Petitions dismissed.