988 PLP 528 (PLC)

Ss. 25-A & 37--Constitution of Pakistan (1973), Art. 199--Writ jurisdiction--Dismissal from service--Grievance petition?Petitioner ?Bank besides assailing orders of reinstatement passed by Labour Court through writ petitions also filing appeals under S.37 of Ordinance before Labour Appellate Tribunal--Appeals dismissed to the extent of reinstatement but orders of Labour Court regarding back benefits reversed--Writ petitions impugning orders of Labour Court which were no more in the field after having been merged into order of Labour Appellate Tribunal, held, were misconceived and not legally competent. Javed Altaf for Appellant Nemo for Respondents Nos.l and 2 Muhammad Asghar Malik for Respondent No.3 Date of hearing: 9th March, 1988. This judgment shall dispose of two writ petitions viz. Writ Petition Nos.2922 of 1984 and 2923 of 1984, involving common questions, of law and facts.

2. Mian Muhammad Afzal respondent No.3 in case of Writ Petition No.2922 of 1984 and Shamsher Ahmad respondent No.3 in case of Writ Petition No.2923 of 1984, were employed in October 1979 as Cashier and Senior Cashier, respectively, in the Main Branch D.G. Khan of the National Bank of Pakistan. They were charge-sheeted for misconduct with an accusation that in connivance with each other they have misappropriated a sum of Rs.9,500, on the basis of a forged withdrawal form in respect of saving bank account No.9471 of one Mr. Abdullah. After service of charge-sheets which, of course, were denied by the aforementioned respondents, a domestic enquiry followed. Consequently, both the respondents were dismissed on 10-3-1982. They challenged their dismissal through grievance petitions before the learned Labour Court No.9, Multan. The grievance petitions were resisted by the employer. After recording the parties' evidence and after hearing them, the learned Labour Court vide order dated 8-10-1983, concluded that the respondents were not actually responsible for defrauding the bank of the amount of Rs.9,500 and no instruction of the bank was ever infringed by them. It was thus held that no case of misconduct, dereliction of duty, breach of trust and misappropriation was made out against the respondents. In the wake of these findings, both the respondents were reinstated with back benefits.

3. The aforementioned judgments passed by the learned Labour Court were assailed before this Court through the under consideration writ petitions, in which mainly it was urged that the terms and conditions of service of the employees of the nationalised tanks and other financial institutions were governed by the Wage Commission Award which was to be treated as an award of the National Industrial Relations Commission and hence such an award could be enforced before the Commission and not before the Labour Court. Thus the very jurisdiction of the Labour Court and the Labour Appellate Tribunal was called in question. A learned Division Bench of this Court allowed the writ petitions as also many other connected writ petitions on the ground that the Labour Courts and the Labour Appellate Tribunal lacked jurisdiction in the matter. It was so done on 10-4-1985. The main judgment was recorded in Writ Petition No.719 of 1982.

4. The respondents and other employees of the banks, whose reinstatement by the Labour Courts/Labour Appellate Tribunal was held to be without lawful authority by the Division Bench of this Court through the aforementioned judgments, preferred appeals before the august Supreme Court of Pakistan. The learned Supreme Court vide judgment dated 15-4-1987, recorded in the case of Iftikhar Ahmad and others v. President National Bank of Pakistan and others (P L D 1988 S.C. 53) accepted the appeals. It was held that the view taken in the High Court that the Labour Courts had no jurisdiction to entertain the petitions of the appellants could not be sustained. Thus the judgments passed by the Division Bench of this Court were set aside and the writ petitions were remanded to this Court for the disposal of other issues which were involved therein.

5. In case of the under consideration writ petitions, the other issues are:- (a) that a dismissed worker is not a workman under the Industrial Relations Ordinance 1969 (hereinafter referred to as the Ordinance), and, therefore, he has no locus standi to file grievance petition under section 25-A of the Ordinance; (b) that the respondents did not avail the remedy of departmental appeal and, therefore, they could not directly file grievance petitions; (c) that the grievance petitions have not been filed against the proper party; and (d) that the respondents admitted their misconduct before the Manager and, therefore, they could not subsequently turn round and deny the same.

6. Regarding the plea that a dismissed worker is not a workman within the meaning of section 2(xxviii) of the Ordinance and hence has no locus standi to file a grievance petition, it may be observe that the provisions of clauses (xxviii) and (xiii) of section 2 of the Ordinance, wherein the expressions 'workman' and 'industrial dispute have been defined as also the provisions of subsection (4) of section 25-A of the Ordinance, have been considered and analysed. The considered analysis of these provisions leads to an irresistible conclusion that a dismissed worker has a locus standi to file grievance petition under section 25-A of the Ordinance, as the grievances regarding his non-employment, which he takes to the Labour Court to be deemed as industrial dispute and is to be decided as such. As a matter of fact, this issue has already been considered by the Supreme Court of Pakistan in the aforementioned Judgment and the learned Court in this behalf has observed: "As the right to approach the Labour Court was available to them under the Ordinance itself, it is unnecessary to examine the further question whether they could also invoke the jurisdiction of the said Courts under Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standings Orders) Ordinance." This question has already been dealt with by me in Writ Petition No.1879 of 1983, decided on 7th March 1988, and it has been held that a dismissed workman has a locus standi to move a grievance petition under section 25-A of the Ordinance.

7. As regards the second issue that since the respondents did not avail the remedy of departmental appeal, therefore, they could not file the grievance petitions under section 25-A of the Ordinance, it has been noticed that there is no legal bar in section 25-A of the Ordinance that a worker cannot bring his grievance before the Labour Court unless he first avails the remedy of departmental appeal. In the case of Trustees of the Port of Karachi v. Abdul Ghani (1983 SCMR 769), it was held: "There is no provision in the Karachi Port Trust Act, 1886, which can be read to exclude the applicability of the Industrial Relations Ordinance, 1969, and for that matter section 25-A of the Ordinance. It is true that an appeal is provided under section 23 of the Karachi Port Trust Act, 1886, but there is no apparent bar against the availability of section 25-A of the Ordinance; and ought it be said that the two remedies are available, side by side, as prima facie the Industrial Relations Ordinance, 1969, by its scope overreaches an establishment which satisfies the definitions of employer, worker or workman and the establishment. On this view of the matter, it is difficult to accept that the Karachi Port Trust Act is a special Act qua its workmen which are governed by it." It is, therefore, concluded in the present case that the respondents could lawfully seek redress of their grievance under section 25-A of the Ordinance, in spite of the fact that they did not first challenge their dismissal by way of departmental appeals.

8. Regarding the plea that grievance petitions were not filed against the proper partv, it has been canvassed that the grievance, petitions should have been filed against the National Bank of Pakistan as the bank in its such name can sue or be sued. This plea could be raised if a civil suit was filed against the bank not in its corporate name but against its officers. In the present case we are dealing with the grievance petitions filed under section 25-A of the Ordinance. The provisions of section 25-A, of the Ordinance clearly provide that the worker has to bring his grievance first to the notice of his employer in writing and if the worker is dissatisfied with the decision of the employer or the employer fails to communicate his decision within the prescribed period, the worker can take the matter to the Labour Court. Thus section 25-A of the Ordinance speaks of the employer. In the circumstances of the present case, the grievance petitions by the respondents were filed against the President National Bank of Pakistan, Senior Vice-President, Executive Vice-President and Assistant Vice-President of the said bank. According to Staff Service Rules of the National Bank of Pakistan, powers of appointment and punishment including dismissal stand delegated to certain functionaries. A cashier, as per contents of Appendix I to the Staff Service Rules, falls in Category and in their case, the Zonal Chief, the competent authority. In this case, in the order of dismissal of the respondents, it was not specifically stated as to which authority has passed the orders of dismissal. The respondents were, therefore, justified to implead the President, Senior Vice-President, Executive Vice-President and Assistant Vice-Presidents as the respondents. In Forbes Campbell and Co. Ltd. Karachi and 3 others v. Habibur Rehman and 2 others (1982 S C M R 651), it was held that provisions of labour laws having been enacted to benefit workers have to be construed in a sense favourable to interests of employees and not to be used as a trap. It was further held that grievance notice sent to local officer was a valid formal grievance notice contemplated by law. A reference to the contents of Annex. 'B' i.e. the replies to the charge-sheets served on the respondents in each case clearly leads to the conclusion that the respondents expressly denied all the charges. It has, however, been stated on behalf of the petitioner-bank that the respondents deposited the amount of Rs.9,500 and thus impliedly they confessed their guilt. There is nothing on the records to suggest that the respondents in fact deposited a sum of Rs.9,

500. It has expressly been contended on behalf of the respondents that they have not at all deposited any amount and that on no occasion they have ever confessed their guilt. The learned Labour Court in its impugned judgments has concluded that the amount of Rs.9,500 stands deposited by the account-holder Abdullah himself. Finding of fact recorded by the learned Labour Court in this behalf cannot be interfered with by this Court in exercise of writ jurisdiction. In Punjab Urban Transport Corporation v. Muhammad Arif (1985 P L C 751), it was held that a finding of fact recorded by a Tribunals having jurisdiction in the matter is not open to interference by High Court in constitutional jurisdiction.

9. It has also been noticed that the petitioner-bank besides assailing the orders of reinstatement of the respondents passed by the Labour Court through the under consideration writ petitions also filed appeals under section 37 of the Ordinance before the learned Punjab Labour Appellate Tribunal. These appeals were dismissed through a single order passed by the learned Tribunal on 17-12-1984 to the extent of reinstatement of the respondents, but the orders of the Labour Court regarding back benefits were reversed as the learned Appellate Tribunal observed that the respondents did not prove that after the dismissal they remained unemployed. Obviously after the order dated 17-12-1984, having been passed by the learned Appellate Tribunal, the impugned orders passed by the learned Labour Court merged into the order of the Appellate Tribunal to which finality is attached under section 37(3) of the Ordinance. The petitioner-bank, however, has not assailed the aforementioned order passed by the Labour Appellate Tribunal. The present writ petition which impugned the orders passed by the Labour Court which are no more in the field after having been merged into the order of the Labour Appellate Tribunal, whereby the appeals were partly allowed and partly dismissed, are, therefore, misconceived and not legally competent.

10. In the light of above discussion, there is no merit in the under consideration writ petitions which, therefore, must fail and are accordingly dismissed. There shall, however, be no order as to costs. S. Q. /N-108/L???????????????????????????????????

???????????????????????????? Petition dismissed.