1992 PLP 462 (PLC)

Qadir Ahmed v. Punjab Labour Appellate Tribunal PLD 1990 SC 787 rel. Muhammad Faruq Abdul Ghani, Representative for the Management. Syed Tauquir Hassan for the Workman. Date of hearing: 21st October, 1990. These two, appeals are directed against the order of the learned Presiding Officer, Sindh Labour Court No. VII at Sukkur, dated 7-11-1989, whereby the grievance petition of respondent was allowed and he was ordered to be reinstated in service with 25% back benefits. Appeal No. Workman Jan Muhammad (hereinafter called the `respondent? and Appeal No filed SUK-513 of 1989. SUK-510 of 1989 was filed by M/s. Allied Bank of Pakistan (hereinafter called the `appellants'). I propose to dispose of these two appeals by this single decision.

2. The respondent was admittedly working as Class III Officer with the appellants at the relevant time. Enquiry was conducted against him under three charge-sheets, dated 11-3-1984, 14-3-1984 and 29-4-1984 respectively. He was dismissed from service vide order dated 18-8-1984. On 11-11-1985 he allegedly filed appeal against the said order of dismissal which, according to the respondent has not yet been decided but according to the appellants was never received by them. However, on 16-4-1989, he served grievance notice upon the appellant and thereafter filed grievance application before the learned Labour Court on 11-5-1989. The appellant resisted the grievance application on that grounds viz. that the respondent was not a workman and therefore the Labour Court had no jurisdiction and secondly that it was barred by limitation. In this appeal, however, the learned counsel for the appellants has stressed only point of limitation.

3. I have gone through the three charge-sheets and find that it is not mentioned therein as to under what rules the respondent was being proceeded against. As the case of the appellant was that the respondent was not workman, they could not have proceeded against him under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The only other rules would be Efficiency and Discipline Rules framed under the Wage Commission Award, 1978. This Tribunal has held in number of cases, that the miles framed by Wage Commission for Rules framed by the bank on the basis of such award are not `Statutory Rules'. This view was also taken by the learned Division Bench of Sindh High Court in the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal 1990 PLC

197. Their Lordships have held that action initiated under said rules from the very inception i.e.. issuance of charge-sheet and all the proceedings are without lawful authority.

4. The Efficiency and Discipline Rules framed by or under the Award of Wage Commission not being Statutory Rules do not supersede the Standing Orders Ordinance, 1968. The respondent could therefore have been proceeded against only under the provisions of Standing Orders Ordinance and the relevant provision would be Standing Order

15. The rules framed by or under the Wage Commission Award would not confer any authority upon the appellant to order the dismissal of the respondent on the basis of the proceedings initiated under the said Rules. The question that requires consideration is whether such an order passed under the rules framed by or under the Wage Commission Award Could be considered as `void' order. Word `void' has been defined in the book 'Words and Phrases'. Permanent Edition, Volume 44 page 525 `under the heading `In general'. There in a judgment and an order is held not to void unless made or entered without authority of law, or without jurisdiction. In this case the order passed by the appellant dismissing the respondent was an order passed without authority of law as held by their Lordships of Sindh High Court and therefore would be `void'.

5. In the case of Syed Nazir Hussain v. Settlement Commissioner, Lyallpur and another PLD 1974 Lahore 343 a learned Single Judge of Lahore High Court relying upon the decision of Supreme Court in the case of Muhammad Aslam Zia PLD 1958 SC 104 held:- "If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognising as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. In this view of the matter, a void order will have no value whatever and is simply to be ignored and consequently no question of limitation will arise against such an order." As the order passed by appellant was without authority of law, it was therefore void and would be nullity in the eye of law. It would be a continuing wrong so long this order is in force therefore there will be no limitation against the said order.

6. In the charge-sheet, dated 11-3-1984 the respondent was charged for acts of misconduct allegedly committed by him in 1981. Similarly in the charge-?sheet dated 14-3-1984 he was charge-sheeted for alleged acts of misconduct committed by him in 1983. Standing Order 15(4) reads as under:- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The' approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiries before dealing with the charge against a workman." It is a mandatory provision of law and it prohibits an employer from dismissing workman unless the act of misconduct is brought to his notice within the period prescribed therein. The order passed by the appellant dismissing the respondent would also be against this mandatory provision of law and therefore would be without lawful authority and thus void. The third charge sheet is dated 29-4-1984 in which he is charged for remaining absent for more than ten days after 1'9-4-1984. It may be pertinent to note that the words used are `after 19-4-1984' and not from 19-4-1984. Thus the respondent is charged I for unauthorised absence from 20-4-1984 and his ten days absence would be completed only after 29-4-1984 and not on that date. As such even from charge-sheet, he cannot be said to be absent for more than ten days on 29-4-1984. The punishment provided for unauthorised absence for less than ten days is under Standing Order 15(1) which is not dismissal. Judging the impugned order of dismissal of the respondent, from any angle, it would be seen that it is absolutely illegal and without any authority of law and as such is void and would be nullity in the eye of law and therefore no limitation would rule against such an order.

7. It may also be pointed out that learned Labour Court relying upon the' decision of Hon'ble Supreme Court reported in PLD 1988 SC 53 has held the respondent to be workman and I see no reason to disagree with this finding. Besides, during the course of arguments the appeal was not specifically pressed against this fining. ???????????

8. In view of the above discussion the Appeal No. SUK-510 of 1989, filed by the appellants is dismissed.

9. The respondent has also filed appeal against withholding of his seventy-five per cent of back benefits. There is no authentic evidence that during the `intervening period the respondent was `unemployed' or was `gainfully employed'-. In the case of Qadir Ahmed v. Punjab Labour Appellate Tribunal PLD 1990 Supreme Court 787 their Lordships have held that it was within jurisdiction of Labour Court to award back benefits as may be just and proper. In view of the circumstances of case I do not find any reason to dis?agree with the quantum of back benefits granted by the learned Labour Court and therefore dismiss Appeal No. SUK-513 of 1989 filed by the respondent. M.Y.H./1783/Lb. S ???????????????????????????????????????????????????????????????????????????? Appeals dismissed.