2006 PLP 339 (PLC)

SYED AKHTER NAQI NAQVI (MEMBER).

The petitioner has filed this grievance petition under section 49(4) (e) read with section 63 (B) (c) and (D) of the I.R.O., 2002 whereby he has challenged the order of his dismissal from service bearing No.S/NAM/269801/070 dated 22-1-2004 Annexure-A attached with the petition. The petitioner has contended that the allegation against him was that he had reimbursed different medical bills in the sum of Rs.5280 on the basis of forged and fake medical certificates issued by the doctors who did not exist at all. The petitioner contended that he had reimbursed the bills within his limit available to him and he ; had sought treatment from doctors who had issued the medical certificate but if they have left the clinics, this was no fault of the petitioner. It was also contended that on similar ground other employees of the respondent's establishment were exonerated and therefore, the petitioner was badly victimized and discriminated on account of his lawful trade union activities. Along with the main petition, the petitioner has also filed an application under Regulation 32(2) of the N.I.R.C. (P&F) Regulations, 1973 for temporary relief for suspension of the operation of the impugned order of dismissal dated 22-1-2004.

2. The respondent contested the grievance petition as well as the stay application on various grounds but primarily he has assailed the jurisdiction of this Commission. I would therefore, refrain myself from narrating the details of the pleadings from both sides which are extremely lengthy. However, since the learned counsel for the respondent while submitting reply to the grievance petition had requested my learned predecessor in office Mr. Altaf Hussain Shah on 7-4-2004 that he had raised certain important points as to the jurisdiction of this Commission, the same may be decided first and it was accordingly decided and therefore, in compliance of those proceedings. I heard the arguments with regard to the jurisdiction of this Commission regarding disposal of this grievance petition. I have also perused record.

3. The learned counsel for the respondent has assailed the competency of this grievance petition and jurisdiction of this Commission on the ground that HBL was in ownership of the Federal Government having more than 51% shares therein and therefore, the employees of the HBL fall under section 2-A of the Federal Service Tribunals Act, as they have been declared civil servants as would appear from a judgment reported as 1998 SCMR at page 8220 and 2129 as also PLD 2003 SC

724. The learned counsel for the petitioner refuted these arguments on the ground that the respondents' bank is no more a property of the Federal or Provincial Govt. and therefore, the employees of the HBL are no more governed by section 2-A of the Federal Service Tribunals Act, and therefore, the Federal. Service Tribunal is no more competent to dispose of the case of the employees of the HBL. He has referred to a judgment of the Federal Service Tribunal itself in a case of UBL. The petitioner's counsel has contended that under section 63 of the I.R.O., 2002 act of discrimination on the part of the respondent is to be seen by the NIRC. So far as the previous contention is concerned, I agree that the employees of the HBL fell under the definition of section 2-A of Federal Service Tribunls Act, as it was amended in 1997 and as held by the superior Courts in various judgments, some of which referred to above. But vide Notification No.F.S (8) BKg-III/2002-381 Government of Pakistan Finance Division dated 26-2-2004, the HBL has been privatized and has been sold out to the Aga Khan Fund for Economic Development and a Board has been constituted consisting of 8 members including five members as nominee of the purchaser while three members as nominee of the Govt. and therefore, it is no more a property of the Federal Govt. It was held in a judgment reported as PLD 1975 Lah. at page 841 referred to by the learned counsel for the respondent regarding jurisdiction of a Court or Commission, that the doctrine that state of things existing at time of institution of suit determines jurisdiction, has no application where question is one of jurisdiction over the subject-matter. It was held that the doctrine that the state of things existing at the time of institution of the suit, is sufficient to determine the jurisdiction, has no application where the question is one of jurisdiction over the subject-matter. On the contrary such jurisdiction must exist throughout the proceedings; at the time of its institution and at the time of its disposal. Since this authority is referred by the learned counsel for the respondent himself, there was no contrary view put forth from any other side. However, a copy of judgment of the Federal Service Tribunal was produced by the petitioner's counsel with regard to a case filed by about 54 employees of UBL against UBL in which the learned Members of the Federal Service Tribunal were pleased to hold that after privatization of the UBL the appeals of their employees were no longer maintainable in that Tribunal and the Federal Service Tribunal has ceased to have jurisdiction in the matter and the appellants of that case may submit application before the Honourable High Court if they so desired.

4. In this view of the matter, when the Federal Service Tribunal has refused to entertain appeals with regard to employees of privatized Bank and in the light of the judgment of the Honourable Lahore High Court that the jurisdiction shall be determined both at the time of institution of the appeal or suit and at the time of its disposal. Since this case has not been disposed of and the HBL has been privatized, this Commission has got jurisdiction to entertain upon this grievance petition which has been filed on the allegation of discrimination and victimization of the petitioner at the hands of the respondent on account of his trade union activities and as a result of unfair labour, practice of the respondent which requires consideration on merits and which is an allegation which can be decided on the basis of evidence led by the parties. I therefore, hold that this Commission has got the jurisdiction to adjudicate upon this grievance petition. H.B.T./132/N.I.R.C. Order accordingly