1984 PLP 1044 (PLC(CS))

(e) Industrial Relations Ordinance (XXIII of 1969)‑ ‑‑ Ss. 25‑A & 38(3)‑Re‑instatement‑Back benefits‑Dismissal for misconduct‑Allegation not amounting to misconduct‑Workman, in circumstances, held, entitled to back benefits on re‑instatement Such matter, held, could not be treated as acceptance of grievance petition on technical grounds. Shahid Rehman for Appellant. Muhammad Zaman Qureshi for Respondents. Date of hearing : 5th September, 1982. The two appeals captioned above arise from the decision, ‑dated 24th September, 1980 passed by the learned. Presiding Officer, Punjab Labour Court No. 1, Lahore, in two separate grievance petitions of the above mentioned respondents, whereby the grievance petitions were accepted and they were directed to be re‑instated in service with back benefits. The allegation against the respondents was that they without any authority enhanced the amount as well as the period of letter of credit of an account bolder. They were charge‑sheeted, replies to which were con sidered as unsatisfactory and an enquiry was held against them, which culminated in their dismissed vide orders, dated 14th October, 1979. Both the respondents brought civil suits on 22nd October, 1979 challenging the orders of dismissal. On behalf of the appellant an objection was raised that Civil Court had no jurisdiction, therefore, the civil suits were with drawn on 30th October, 1979 and on 6th April, 1980 grievance notices were given by the respondents and when no remedy came, they brought two separate grievance petitions before the Labour Court on 30th April, 1980. Before giving grievance notices and after withdrawing the civil suits depart mental appeals were preferred by the respondents on tad November, 1979 which, according to the respondents, have not yet been decided, or at least no decision‑conveyed to them. Since on the face of it the grievance notices and the grievance petitions were time‑barred, applications for condonation of delay were moved by the respondents in their respective grievance petitions, which were accepted and the delay condoned.

3. Since the facts and law points involved in both the appeal are common, they are being decided together through this single judgment.

4. Three points were raised by the appellant which were that the grievance petitions were time‑barred that the respondents were not workmen and that the allegations made against the respondents amounted to misconduct. On behalf of the respondents it was contended that no second show‑cause notice was served, therefore the orders of their dismissal were illegal and that the charge‑sheets were time‑barred. So far as the first point is concerned, this is an admitted fact that the depart mental appeals were brought by the respondents and the learned counsel for the appellant has failed to show that they were decided and the deci sion was conveyed to the respondents and that from the date of the deci sion, the grievance notices were time‑barred. Since departmental appeals of the respondents were not decided, they were justified in waiting for the decision and when sufficient time had passed, they without further loss of time gave grievance notices which were follow ed by the institution of the grievance petitions. The time spent in the wrong Court i. e. civil Court was rightly condoned as the suit was brought under wrong legal advice. The grievance petitions, therefore, were within time.

5. On the point of workman the respondents appearing as their own witnesses deposed that their duties were clerical. In cross‑examination Ghias Mohy‑ud‑Din Butt, respondent, stated that his duty was to check the general ledgers, which work he had to do for five to ten days in a month and during the remaining time he used to check the books of the accounts. The checking of ledgers and accounts is nevertheless clerical work. It was not enquired from this witness in cross‑examination that he had any supervisory duty and that he had any subordinate. No duty roster or oral evidence was produced on behalf of the appellant to show that the duties of Ghias Mohy‑ud‑Din Butt, respondent was supervisory or that they were not clerical. So far as Muhammad Saleem Taramboo, res pondent, is concerned, he stated that the nature of his duties was clerical and no administrative control was given to him. He also stated that he had no power of hiring and firing. In cross‑examination Muhammad Saleem Taramboo, respondent, stated that his duties were to deal with foreign exchange and export cases and that the Manager was the Incharge of his branch. He also stated that it was his duty to deal with the godown where there was one clerk. This is noteworthy that no question was put to the said respondent in cross‑examination about his supervisory work. No evidence in rebuttal was produced, or any duty roster is on the record to rebut the statement of the respondent that his duties were clerical. As Standing Orders Ordinance, 1968 is not applic able to nationalised banks and Wage Commission Award is applicable, this is not to be seen whether the respondents are covered by the defini tion of workman given in the Standing Orders Ordinance, 1968. The definition of workman given in the Industrial Relations Ordinance, 1969 only is relevant. Since it was not proved on behalf of the appellant that the duties of the respondents were supervisory in nature, therefore, they are not covered by exception (b) to section 2 (xxviii) of the Industrial Relations Ordinance, 1969. The mere fact that the basic pay of the respondents was Rs: 1,500 and with allowances Rs. 2,000 was not sufficient to exclude them from the definition of the workman. They were therefore, rightly declared as workmen by the learned lower Court. 5‑A. The learned counsel for the respondents has not agitated the points in arguments that the charge‑sheets were time‑barred or second show‑cause notices were not served. Since the Wage Commission Award applies to the nationalised batiks, Standing Orders Ordinance, 1968 is not applicable, no question of the charge‑sheets being time‑barred arises.

7. It has been argued by the learned counsel for the respondents that, the allegation made against the respondents did not amount to misconduct. The allegation, as mentioned above, is that they without any authority enhanced the amount of the letter of credit and increased the period. No rule has been shown by the learned counsel for the appel lant that the above‑mentioned acts done by the respondents are miscon duct according to any rules of the bank. According to paragraph 258 of the first Wage Commission Award of 1975, the grounds for penalty, are the breach of regulations of the banks/financial institutions, breach of discipline, or the contravention of instructions/orders issued in connection with official work or where an employee displays negligence, inefficiency or indolence or knowingly does anything detrimental to the interest of the bank/financial institution, to which he is serving, or is guilty of any other act of misconduct or insubordination. If enhancement of amount and the increase of the period of letter of credit is prohibited by any rule, of course the acts done by the respondents may amount to misconduct, but since no rule has been shown by which the respondents were prevented from enhancing the amount and the period, it does not stand proved that the acts done by them constituted misconduct. There is no dispute that the respondents had power to grant cash credit facility fixing the period and time. It has not been shown that upto a fixed amount and fixed period, the respondents could grant cash credit facility, therefore, it cannot be said that enhancement of amount and the time was against the rules. So far as paragraph 258 of the first Wage Commission Award is concerned, it does not say that the enhancement of amount and the period in the letter of credit is misconduct or is disallowed. In these circum stances, the learned lower Court was justified in holding that the allegation made against the respondents was not proved to be misconduct.

8. One other point also arises in these cases, which is that the authority, who issued the charge‑sheets and passed the dismissal orders was not competent. Before the decision of the case of Ghias‑Mohy‑ud- Din Butt no circular letter was placed before the lower Court, but, there after and before the decision of the case of Muhammad Saleem Taramboo a letter of delegation of power No. 08/79 was brought to his notice although neither the original nor its certified copy was brought on the record. The learned trial Judge in the case of Muhammad Saleem Taramboo has discussed that even according to the said circular letter, the authority who issued the charge‑sheets and passed the dismissal orders was not competent as he had not been delegated the powers. According to circular letter, Senior Executive Vice‑President was competent to dismiss the Officers Grade‑I to III. Recommendation for the dismissal was in the present cases made by the Assistant Vice President and the Senior Executive Vice‑President agreed with him. The learned trial Judge has wrongly applied Standing Orders Ordinance. 1968. According to first Wage Commission Award, only the `authority' is competent to issue charge‑sheet and pass dismissal order. The authority, which in other words, means the appointing authority. Since the dele gatee was the Senior Executive Vice‑President, only he was competent to issue charge‑sheet, to order enquiry, to appoint Enquiry Officer and to pass final order of dismissal. The charge‑sheets, in the present case, were issued by the Executive Vice‑President who is below the Senior Executive Vice‑President, which is not clear even by the designation. The explanation to the charge‑sheets was not considered by the Senior Executive Vice‑President but by the Senior Vice‑President, who again was not competent. The order of enquiry was also passed by the Senior Vice President. No doubt, the Senior Executive Vice‑President passed the final order which was 'I agree' but it does not appear that he had himself gone through the case thoroughly and decided that this was a case of dismissal Thus, the orders of dismissal were not legal, in much as the very charge sheets were not issued by the proper authority and the Enquiry Officer also was not appointed by the competent authority. The order of reinstate ment, therefore, is legal. So far as the question of back benefits is concerned; if the appellant had succeeded in showing that the allegation made against the respondents amounted to misconduct, there could be scope to say that on technical grounds the respondents had succeeded, therefore, they were not entitled to back benefits. But when the very allegation made against the respondents was not proved to be amounting to misconduct, they could not be proceeded against. They were, there fore, rightly allowed back benefits also.

9. As upshot of the discussion made above, I do not find any force in the appeals and dismiss them. A. E. Appeal dismissed.