2022 PLP 156 (PLC)

NOOR ZAMAN, MEMBER.

Appellants were employees of National Institute of Banking and Finance under Pakistan Banking Council. The Banking Council was dissolved in terms of Banks Nationalization (Amendment) Ordinance, 1997 and consequently all its assets and liabilities including NIBAF were transferred to the State Bank of Pakistan. The employees who were on deputation with NIBAF were repatriated to their parent departments, while remaining employees including the appellants became employee of State Bank on terms and conditions governing their employment with the NIBAF. The appellants were taken by State Bank on its roll but their services were subsequently terminated. The appellant challenged their termination in FST in appeal bearing No.l537(R)CE/2002 where their appeal was allowed on 28-08-2004 and they were to be reinstated in service. The matter was brought to the Hon'ble Supreme Court vide Civil Appeals Nos.242 to 266/2005 where during its pendency section 2A of the Federal Service Tribunal Act, 1973 was declared ultra vires and the matter was abated on 26-06-2009. Consequently some of other employees filed petition No.168 of 2006 before Presiding Officer Labour Court, Islamabad which was allowed with the direction that the petitioners be reinstated into service with back benefits. The respondent Bank filed an appeal before the Labour Appellate Tribunal, which was dismissed and the Bank challenged the said dismissal in the Islamabad High Court vide Petition No.1966/2011 which was also dismissed vide order dated 22-06-2012 and finally the respondent Bank approached the Supreme Court of Pakistan, through Civil Petition No.56 of 2015 which was accepted with the direction to get fresh decision from learned NIRC, Islamabad as the matter is now in its jurisdiction.

2. The single Bench of NIRC accepted the petition, against which the respondent Bank filed appeal before the Full Bench of NIRC which dismissed the appeal and the Bank approached IHC through W.P. No.4861/2014 which was also dismissed vide order dated 11-12-2014 and finally the matter came to the Supreme Court where it also faced the same fate and dismissed vide order dated 29-09-2015. Consequently the litigant employees were reinstated with full back benefits.

3. The appellants who were not part of the above litigation after abatement of application of Bank by Hon'ble Supreme Court dated 26-06-2009, on the basis of judgment of Islamabad High Court in favour of colleague employees served grievance notices on respondent Bank on 17-04-2015 and explained the whole position but that was not entertained. The appellants approached Single Bench of NIRC where the petition was dismissed vide order dated 19-07-2017 on grounds of limitation. Hence this appeal.

4. Learned counsel for the respondents vigorously contested the appeal and contended that the appellant had slept after order of Supreme Court on 26-06-2009 and abandoned their claim for six years. That litigation of other employees does not entitle the appellant to the relief granted to their colleagues.

5. Learned counsel for the appellant pleaded that the Supreme Court in order dated 29-09-2015 at para No.3 page 4 in the table mentioned names of appellants as employees of the Bank and mentioned the office order through which these employees were absorbed in State Bank. The supreme Court has remarked:- "The reading of the above office order in clear terms provides for absorption of respondents Nos.5 and 6 with the State Bank on the same terms and conditions of their employment as in the council"

6. The Learned Counsel further stated that the judgment of Supreme Court giving relief to the colleague employees can also be extended to the appellants for which he relied on judgment of the Supreme Court titled PIAC v. Samina Masood and others, reported as PLD 2005 SC 831 where the relief granted to Miss Shirin Dokht can be extended to other women Crew of the Cabin with regard to retiring age of Ladies Crew, though they were not part of litigation. That before going to FST, the appellants had made a departmental representation which is a kind of grievance notice as there is no any format given by law for grievance notice. The matter was smoothly running till decision of Supreme Court on 26-06-2009 whereafter it continued till final decision by Supreme Court upholding reinstatement of other colleagues of appellants.

7. Arguments heard record perused.

8. Corner stone of the issue of reinstatement of employees of defunct NIBAF is the Office Order No. PD-78 dated 04-03-1997 which is as follows:- "In terms of Section (3)(b) of the Banks (Nationalization Act, 1994, as amended vide Ordinance No.VIII of 1997, the following ' officers/staff of NIBAF, Islamabad have been absorbed in the State Bank of Pakistan with effect from 22-01-1997 in the same capacity on the terms and conditions governing their employment in the said institution, until further orders:- Sl. No. Name Designation

1. Mr. Zulfiqar Ahmed Asstt. Libration

2. Tariq Mehmood Public Relations Officer

3. Ishtiaq Hussain Shah P.C Operator

4. Sajida Akhtar Lib. Asstt.

5. Sad Basdshah Driver

6. Muhammad Sadiq Watchman

7. Makhan Khan -do-

8. Muhammad Munir -do-

9. Ghulam Hassan -do-

10. Muhammad Khan -do-

11. Muhammad Irfan Head Gardener

12. Mohammad Amin Gardener

13. Iftikhar Ali Gardener

14. Farasit Ali Gardener Helper

15. Abdul Rasheed Messenger "The should note that any promotion, salary increments or benefits etc., given to them during the period from 1-1-1997 to 21-01-1997 will not be treated as effective unless re-confirmed by State Bank of Pakistan. "Further the services of the following employees of NIBAF, Islamabad have also been hired on contract basis with effect from 22-01-1997 on the same emoluments on which they were serving with NIBAF, until further order:- Sl.No. Name Designation

1. Mr. Mehmood Ahmed Civil Engineer

2. Abid Hussain P.S

3. Shahid Rehman Assistant

4. Nasir Mehmood Telephone Operator

5. Khalid Qureshi Receptionist

6. Imtiaz Aziz -do-

7. Awaiz Ahmed Driver

8. Ayoub Khan Driver

9. Abdul Majeed Messenger

10. Abdul Ghafoor Cook

11. Khurshid Abbasi Asstt. Cookwaiter

12. Walliat Hussain Waiter

13. Dawood Waiter

14. Azhar Hussain Telephone Operator

15. Muhammad Amjad Assistant

9. The Hon'ble Islamabad High Court in Writ Petition No.4861/2014 and Supreme Court in Petition No.43(03)/2016 held that the office order which given right of absorption to employees of defunct NIBAF could not be withdrawn at later stage. These courts on approach of colleague employees of appellants upheld the office order and directed the respondent to fulfill is commitments made herein. As dictum set by Hon'ble Supreme Court in judgment reported PLD 2005 SC 831 the judgment of Supreme Court qua the vires of above office order applicable to all employees covered under the said order irrespective they were party to the litigation or not. The operative part of judgment PLD 2005 SC 831 is reproduced bellow:- "No doubt in the aforesaid writ petition the relief was given to Miss Shirin Dokht but at the same time Regulation 25 was declared to be ultra vires the Constitution. The status of res in the aforesaid writ petition was the retirement as such of all female cabin crew being ultra vires the constitution apart from the subjective interest of Miss Shirin Dokht. So far as the subjective interest of Miss Shirin Dokht was concerned, it can be treated as judgment in personam but so far as the vires of Regulation 25 ore concerned, the adjudication was conclusive objectively and, hence, was judgment in rem. The point involved stands elaborately discussed by this Court in Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC

145. We hold without having two opinions that the judgment in case of Miss Shirin Dokht qua the vires of Regulation 25 was a judgment in rem appeal against which was withdrawn by PIA before this Court. We do believe that the question of law settled up to case but, in view of the circumstances discussed above, we do not propose to hold differently.".

10. Similarly Supreme Court in 1996 SCMR 186 and 2011 PLC (C.S.) 560 held that non-litigating parties have to be extended benefits to relief granted to other similar petitioners.

11. The learned Single Member has not looked into the case in perspective of such lengthy litigation where employees of defunct NIBAF were dragged two times from trial courts to the Hon'ble Supreme Court and every court from trial to High Court and Supreme Court upheld right of the employees envisage in office order No.PP-78, dated 04-03-1997. The appellants were also part of litigation and FST granted them the right of absorption, but the respondent preferred appeal to Hon'ble Supreme Court and process stopped after appeal of respondent Bank was abated in 2009. The appellants reached the NIRC during pendency of case of their colleagues in Supreme Court, which subsequently decided in favours of their colleagues.

12. In view of above arguments and discussion, we are of the opinion that judgment of Hon'ble Supreme Court in Petition No.56 of 2015 qua the office order dated 11-12-2014 can also be extended to the appellants consequently the appeal is accepted and impugned order of Single Bench is set aside. SA/6/NIRC Appeal accepted.