1984 PLP 964 (PLC(CS))

P L D 1964 S C 536 ; 1975 P L C 556 apd 1977 P L C 456 held not relevant. (g) Industrial dispute -- Dismissal from service for misconduct - Charge-sheet served by authority not competent to do so-Whole superstructure raised upon such charge-sheet, held, falls to ground hence dismissal order not sustainable. (h) Industrial dispute

Domestic enquiry-Accused not asked if he wanted t0 produce evidence-Deemed to have not given defence opportunity. Khalid Mahmood Pasha for Appellant. Masood Ashraf Sheikh for Respondent. Date of hearing : 6th October, 1982. In this appeal the decision dated Ist June, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur has been challenged, whereby the grievance petition of the appellant for his re instatement in service was dismissed.

2. The appellant was a Cashier. On the ground of two charges he was dismissed from service. One charge was that he had lost the keys of two steel almirahs and the strong room and the other was that he had misappropriated an amount of Rs. 100 on 25th May, 1975. Two charge sheets were signed by the Bank Manager and not by the competent authority i.e. the Assistant Vice-President. Learned counsel for the respondent has said that one of the charge-sheets was signed by the Bank Manager but that too under the instruction of Assistant Vice-President and the other was given by the Assistant Vice-President, himself, but the learned counsel stands contradicted by the original char-e- sheets Exhs P. 8 and P.

9. They bear the signatures of the same officer and the designation under the signatures is given as Manager. There is no indication in these charge-sheets that the Bank Manager had been authorised by the competent authority to issue charge-sheets. The learned counsel for the respondent has, however, argued that since the legality of the charge-sheets was not challenged in the grievance notice, therefore, in grievance petition no such plea could be taken. In this respect he relies upon 1975 P L C

196. The fact involved in the case from which the authority arose was that in the grievance petition payment of the dues only was requested and reinstatement was not prayed for. It was, therefore, held that if he had not brought the grievance to the notice of the employer, he would loose his right under section 25-A of the Ordinance. It is apparent from the perusal of the authority cited by the learned counsel that the question of fact was involved which has not been put forth in the grievance notice and was claimed in the grievance petition. Legal point can be raised at any stage of the case. The. question whether the authority who gave charge-sheets was competent or not is a legal point. There is no dispute that the charge-sheets were given by the Bank Manager. As mentioned above, from the charge-sheets IA it is clear that they bear the signatures of the Bank Manager. So only a legal effect is to be seen whether such charge-sheets were valid anal effective. Such a point can be raised at any stage even though it was not raised in the grievance notice. Complete details are not to be given in the grievance notice. This is noteworthy that even though in the grievance petition it was urged that the charge-sheets were not issued by the proper authority, yet the grievance was not redressed. So even if such a point had been raised in the grievance notice, the result would have been the same as now stands. Since the employer has not redressed the grievance after application under section 25-A was made and contested, it cannot be said that if the point had been raised in the grievance notice, the grievance could have been redressed.

3. The learned counsel for the respondent has raised a point that the petition was not made against the bank but against a designation. The grievance petition was made against the Assistant Vice-President. I do not find any force in the argument of the learned counsel that it should have been made against the bank. In civil cases it may be said that the bank being a corporate body and the juristic person, suit should be brought against it, but in labour cases that rule is not applied. In these cases the employer is to be sued. The grievance notice is always given to the employer and the petition also is brought against him. Section 25-A is clear on the point. Subsection (l) of section 25-A says that the grievance notice is to be given to the employer. Subsection (4) B of section 25-A does not say that the grievance petition is to be brought against the establishment. Learned counsel has cited. on the point 198 P L C 568(r). No doubt, such an observation has been made in this authority, but with great respect I do not find myself in agreement with the view expressed by the Hon'ble Judge

4. Learned counsel for the respondent has also said that it was contended before the learned lower Court that the appellant was not a workman but no finding has been given on the point. I have carefully gone through the written statement but have not been able to find any objection to the effect that the appellant is not a workman. Learned counsel has raised this point during arguments without exercising due care and caution and going through the written statement. Needless say that the duties of a cashier are clerical and not managerial or supervisory. He does not come within the definition of employer either. The point, therefore, cannot be taken up during arguments in appeal. This is a question of fact and should have been raised in the pleadings.

5. The other point raised by the learned counsel is that the National Industrial Relations Commission and not the Labour Court had jurisdic tion. He has cited 1982 P L C

1. N. I. R. C. had jurisdiction only in the cases involving unfair labour practices. The functions of the Commis sion are given in section 22-A (8) (c) of the Industrial Relations Ordinance, 1969. The relevant clause reads as under :- "to adjudicate and determine an industrial dispute to which an industry-wise trade union or a federation of such trade unions is a party and any other industrial dispute which is in the opinion of the Federation Government of national importance and is referred to it by that Government." Section 22-B (3) (a) is also clear on the point. It reads as under :- "in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences, or enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court." It is clear from the above that only the cases based on allegations of unfair labour practices on the criminal side or civil side can be heard by the benches of the Commission by exercising same powers which are exercised by a Labour Court. In clause (b) there is no restriction of unfair labour practices but it says that the dispute should be in relation to industry-wise trade union, federation of such trade unions, federation at the national level and the cases referred to the Commission. The present case is not of such a nature. Moreover, clause (a) of section 22-B (3) does not bar the jurisdiction of the Labour Court but says that in the cases of unfair labour practices the Commission shall have the same powers as are exercised by a Labour Court. So, the Labour Courts are competent to hear the cases like the one under discussion. The law enunciated in the authority cited by the learned counsel for the respondent with due respect to the honourable Judge is not correct.

6. The next point raised by the learned counsel for the respondent is that the grievance notice and the grievance petition were time-barred. The appellant had previously brought the grievance petition but the same was dismissed by the learned lower Court on 20th August, 1979 on the ground that there was provision of departmental appeals but the said remedy has not been exhausted before coming to the Labour Court. Thereafter. the appellant brought departmental appeal which was dismissed on 5th May, 1980. The grievance notice was given by the appellant on 15th June, 1980 and brought the second grievance petition on 11th August. 1980. The learned counsel says that since the appellant was dismissed on 4th October, 1979 the grievance notice given on 5th May, 1980 and the petition brought on 11th August, 1980 were time barred. In cases where an employee elects to exhaust departmental remedy first, the cause of l grievance arises to him on the date on which - his departmental appeal or representation is dismissed. Bringing of departmental appeal is not necessary and the decision of the learned lower Court dated 20th August, E 1979 was wrong, but since the appellant in compliance of that order had brought the departmental appeal, the cause of grievance arose to him from the dismissal of that appeal. This is noteworthy that the previous grievance petition of the appellant was dismissed on the objection of the respondent that without exhausting departmental remedy the grievance petition could not be brought. The learned counsel says that the appellant instead of bringing the departmental appeal should have challened the earlier order of the learned lower Court in appeal. Since on the objection of the respondent the previous petition of the appellant was dismissed erroneously, the respondent is estopped from saying that the previous order of the Labour Court was wrong, therefore, the appellant should have challenged it in appeal or that the cause of grievance should be taken to have arisen to the appellant from the date of dismissal and not from the date of dismissal of his departmental appeal. The learned counsel says that there is no estoppel against law, therefore, the respon dent was entitled to plead that the previous decision of the Labour Court being wrong, the appellant should not have in compliance with that order brought the departmental appeal and should have challenged the order of the Labour Court in appeal before this Tribunal. I do not find any force in this argument. When a party raises a plea in the pleadings and the Court rightly or wrongly acts upon it, the said party is estopped from saying that the decision of the Court was wrong. The learned counsel also says that the departmental appeal brought by the appellant was time barred. Since the appeal was entertained and decided on merits, now it cannot be urged that it was time-barred, therefore, the grievance notice and the grievance petition be regarded as time-barred. If the appeal had not been entertained and had been rejected as time-barred, the appellant may have given the grievance notice and brought the grievance petition without further loss of time, He cannot be made .to suffer for the act of the respondent. Since his appeal was not rejected as time-barred and was entertained. he was given an impression that the authority had condoned the delay and wanted to decide the appeal on merits. Learned counsel m support of his argument has cited P L D 1964 S C 536, but no such point in support of which learned counsel has cited this authority was involved in the case. Likewise 1975 P L C 556 and 1977 P L C 456 are not relevant.

7. Since the very charge-sheets were given by the authority who was not competent, the whole superstructure raised upon it fell to the ground.

8. So far as merits of the case are concerned, according to the statement of the complainant namely Khadim Hussain, who appeared as P. W. 1 before the learned lower Court, the amount of Rs. 770 had been delivered by him to Muhammad Afzal, who issued the receipt to him in the amount. He further stated that after realising that he had delivered Rs. 770 but receipt was given to him of Rs. 670, be in the next morning met Ashfaq, Peon, who told him that he had paid Rs. 100 in excess and that he should go to the bank and get further receipt, whereupon he (the witness) went to the bank and obtained another receipt from Muhammad Afzal, Clerk. In cross-examination it was not put to him that he had delivered the amount to the appellant and that it was the appellant who had given him the receipt of Rs.

670. Almost same kind of statement was given by him in the enquiry. However, he stated that the slip of Rs. 670 was taken by him from Muhammad Afzal and delivered Rs. 770 to the appellant. He further stated that he went to the house of the cashier, where Muhammad Afzal was also present and told the cashier that he had given him Rs. 100 more, but the appellant did not admit it. On merits the appellant does not appear to have a good case. Another technical defect is that the appellant was not give an opportunity to examine the witness in defence. He was. not enquired he wanted to produce any evidence.

9. Since the charge-sheets were given by the incompetent authority' and the appellant was not afforded opportunity to produce defence, the order of dismissal and the impugned decision of the learned lower Court are not sustainable. I, therefore, accept the appeal and setting aside the impugned decision of the learned lower Court and the dismissal order, direct the re-instatement of the appellant in service. Since on technical grounds, the appellant ha:, been re-instated, he is not entitled to back benefits. A. E. Appeal accepted.