1988 PLP 945 (PLC)

Mushtaq Ahmad Malik, respondent No.3, hereinafter referred to as the respondent, was serving as Officer Grade III in Kabari Bazar Branch Sargodha of the Muslim Commercial Bank Limited in the year 1982. On 15‑9‑1982, he was served with a charge‑sheet by the then Zonal Chief of the Muslim Commercial‑Bank Limited. It was alleged that his name was enlisted as a non‑departmental canvasser of Postal Life Insurance, Sargodha, and he carried out pecuniary during the tenure of his service in the Bank from 9‑6‑1976 to 21‑2‑1980 and that, violated the Bank's Service Rules.

2. The respondent submitted reply to the charge‑sheet on 2I‑9‑1 t whereby he denied the charge. A departmental enquiry was conducted there alter. Pursuant to the result of the domestic enquiry, a show‑cause notice was served n the respondent and ultimately the respondent was dismissed from service 15‑3‑1983.

3. The respondent then served a grievance notice on the employer and thereafter filed a Grievance Petition under Section 25‑A of the; Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance, before learned Labour Court No: 5, Faisalabad.

4. The learned Labour Court, after hearing the parties and after recorded their evidence, accepted the grievance petition of the respondent on 15‑4‑1984 and directed his reinstatement with back benefits.

5. The Petitioner‑Bank preferred an appeal before the learned Punjab Labour Appellate Tribunal, but before the decision of the said appeal by the Tribunal, the Bank filed the under consideration Constitutional Petition contending that the remedy by way of appeal before the Tribunal was not an adequate one.

6. In the, present Writ Petition, it was mainly contended that the terms and conditions of service of the employees of Nationalized Banks and Financial Institutions were governed by the Wage Commission Award which, according of the provisions of Section 31 of the Ordinance, was to be deemed as an Award of the National Industrial Relations Commission and, therefore, any right guaranteed by the said Award could be enforced by the National industrial Relations Commission alone and the Labour Court lacked jurisdiction in the matter. This contention found favour with a learned Division Bench of this Co, which accepted the writ petition on 10‑4‑1985 along with many other petitions raising the same issue. The main judgment was recorded in V Petition No. 719/82. The respondent as also the other workmen adversely affected in other writ petitions went in appeal before the august Supreme Court of Pakistan against the aforementioned judgment of the Division Bench of this Court. The learned Supreme Court has accepted the appeal and has observed that the Award of the Wage Commission could also be enforced under Section 25‑A of the Ordinance and that an otherwise view expressed by the High Court was not sustainable. The case has been remanded to this Court for deciding other issues involved herein.

7. The other issues which have been urged on behalf of the Petitioner‑Bank may be summarized as under:‑‑ (i) that the respondent being a Grade‑III Officer cannot be regarded as a workman within the meaning of Section 2(XXVIII) of the Ordinance and has thus no locus standi to rile application under Section 25‑A ibid ; (ii) that being a dismissed employee, the respondent has ceased to be a workman within the meaning of the Ordinance; (iii) that the learned Labour Court has sat in appeal over the proceedings of the domestic enquiry and has substituted its own findings for those of the enquiry officer which it could not do; and (iv) that it has wrongfully been held that the disciplinary proceedings against the respondent have been initiated by an incompetent authority.

8. The respondent, while appearing as his own witness before the learned Labour Court, testified that no subordinate staff was posted under him and that he was not entrusted with any supervisory duty; his duties were of clerical nature; he used to maintain Ledger Books, Pass Books, D.D. applications and also' prepared the monthly statements with his own hand. Nothing has come on the record to contradict the statement of the respondent detailed above. In the light', of the duties being performed by the respondent, the learned Labour Court has'', rightly concluded that he was a workman. In Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 S C M R 304 it was held that the respondent in the said case, who was designated as Chief Accountant, was rightly held to be a workman as he performed clerical duties and acted under the instructions of the Incharge of Account Section of the Company. The second issue raised on behalf of the Petitioner‑Bank is also of no substance. The Supreme Court of Pakistan in the judgment, whereby the present case has been remanded, has expressly found that the Industrial Relations Ordinance, 1969, is applicable to dismissed workmen. Moreover, a careful and considered scrutiny of the provisions of Section 2(XXVIII), 2(XIII) and Section 25‑A (4) of the Ordinance leads to conclusion that a grievance concerning non‑employment viz, termination and dismissal of a workman taken before the Labour Court under Section 25‑A of the Ordinance would be deemed to be an industrial dispute and thus a terminated or dismissed workman has a locus standi to file an application under Section 25‑A. Section 25‑A supra expressly provides that while adjudicating and determining a grievance brought before it under Section 25‑A, the Labour Court shall go into all the facts of the case and pass such order as may be just and proper in the circumstances of the case. In the light of these provisions, there is no force in the petitioner's objection that the Labour Court could not substitute its own findings for those of the Enquiry Officer. As already stated, in the present case, charge‑sheet was served on the respondent by the Zonal Chief of the Petitioner‑Bank. He ordered enquiry against the respondent. Even the final show‑cause notice dated 6‑1‑1983 (Annexure G) was also served on the respondent by the Zonal Chief. The respondent being a Grade III Officer falling within Category 1, as per Rule 6 of o the Muslim Commercial Bank's Staff Service Rules, the Zonal Chief of the Bank did not happen to be the competent authority in his case. It has also been noticed that vide Annexure L dated 18‑11‑1982 Senior Vice President, Head Office, Karachi, informed the Zonal Chief that it has been decided to dismiss the respondent. Final show‑cause notice dated 6‑1‑1983 was issued to the respondent subsequently. It was thus a mere colourable exercise. Disciplinary action initiated against the respondent and charge‑sheet, having been served on him by an incompetent authority, are nullity in the eye of law. Subsequent proceedings, therefore, are also rendered as invalid.

9. In the light of the foregoing conclusion, there is no merit in the under consideration writ petition, which, therefore, fails and is dismissed. There shall, however, be no order as to costs. S.O./M‑770/L Petition dismissed