1989 PLP 942 (PLC(CS))

‑‑S. 25‑A‑‑Grievance petition against dismissal for misconduct‑‑Reinstatement‑ Back benefits‑‑Situation when employee may or may not be entitled to back benefits‑‑Allegation not amounting 'to misconduct or alleged misconduct not brought home or workman condemned unheard‑‑Workman, in circumstances, may be entitled to back benefits‑‑Proceedings taken and order passed by authority not competent to do so is a technical defect‑‑Dismissal order, if set aside due to technical defect, workman, may not be entitled to back benefits. Shahid Hameed for Appellants. H.R. Haider for Respondent. Date of hearing: 26th April, 1988. The two appeals captioned above emerge from the decision dated '‑3‑1988 recorded by the learned Presiding Officer, Punjab Labour Court No. 5, Sargodha, whereby Muhammad Aslam Khan (hereinafter called as the respondent) has been directed to be reinstated in service without back benefits. The respondent has in his appeal claimed back benefits and challenged the observations made by the learned lower Court to the effect that the allegation contained in the charge‑sheet amounts to misconduct, whereas Habib Bank Limited through its President, Senior Vice‑President and Vice‑President have in their appeal challenged the direction of reinstatement of the respondent in service. Since both the appeals emerge from the same decision, they arc being disposed of together through this single judgment.

2. The ground on which the learned lower Court has set aside the order of dismissal is that the Zonal Chief, appellant No. 3. was not competent to issue the charge‑sheet, order inquiry and to appoint the Inquiry Officer. Back benefits have not been allowed by the learned lower Court on the ground that merely on technical grounds the respondent has been directed to be reinstated in service.

3. The allegation, for which the respondent was dismissed from service, was that he applied for marriage grant after changing the date of marriage in the Nikahnama showing that the marriage had taken place on 9th September instead of 9th April. In answer to the charge‑sheet the respondent admitted this fact. The ground given by the learned lower Court for holding that appellant No. 3 had no power to issue charge‑sheet and appoint Inquiry Officer is that according to rule 26 sub‑rule (2) of Habib Bank Staff Service Rules, 1981, the said rules apply to the extent they are in conformity with the Wage Commission Award of 1975 inasmuch as there is no provision of delegation of powers in the said Award. The approach of the learned lower Court to the issue is incorrect. Although the Wage Commission Award does not make provision of delegation of power yet it dock not prohibit the delegation. The term 'competent authority' is used in paragraph A 258 sub‑paras. (4) and (5) and since the term has rot been defined in the Wage Commission Award, the authority who has been delegated powers legally will be competent authority. Rule 39 of Staff Service Rules, 1981 in the same manner provides that the competent authority shall issue the charge‑sheet and appoint Inquiry Officer. The competent authority would be that who either enjoys such powers inherently or is the delegatee. So the officers who have been delegated powers by the competent authority will be regarded as competent in that behalf. The thing to be seen is whether the delegation of powers made under rule 5 of Staff Service Rules, 1981 is according to law. Rule 5 reads as under:‑‑ The powers delegated the executive board under the rules to various competent authorities, unless otherwise speciality, arc given in appendix-I. All other powers shall vest in the executive board." The `executive board' has not been defined in rule 3 of Staff Service Rules, 1981. Rule 6 deals with the classification of staff but executive board does not find place in it. No rule of Staff Service Rules, 1981 defines or explains tile executive board. Thus the origin of the executive board is not known to the said rules. To find out what is executive board, the only document which may be perused is. the Memorandum and Articles of Association of Habib Bank Limited. The said document also does not give any space to 'executive board'. Needless to say that the directors are the shareholders of a company and they have inherent powers. If they provide that they will be competent to delegate their powers to some officers or persons, only then delegation will be legal. In the Articles of Association the directors are mentioned and their powers are also given. Paragraph 113 provides the delegation of powers. It reads as under:‑‑ "The Directors may at their discretion delegate to any manager or other officer such of their powers as they are not expressly prohibited from delegating for such time and subject to such conditions and restrictions as they may think expedient and may at any time revoke or vary any of such delegated powers:" It is thus clear that the directors can delegate powers. Since the term `executive board' does not rind place in the Articles of Association nor paragraph 11 says that the directors may delegate powers to such an executive board, it does not appear that any executive board has come into legal existence and that the board of directors has delegated its powers to it. Paragraph 115(2) deals with local board but there also no executive board is mentioned. If a local board be confused with executive board, since there is no document on the record whereby the directors may have delegated their powers to the local board, such a board cannot be taken to be the delegatees of the directors. The other thing is that a delegates cannot further delegate its powers unless he has been authorised in that behalf by the delegator. So one thing is that there exists no executive board and the other is that no such executive board is the delegatee from the directors and the third is that even if the existence of such a board is accepted and it is said that the said board is delegates from the directors, then since no provision has been shown that the executive board had been vested with the powers to further delegate the powers to any other officer, rule 5 of Staff Service Rules, 1981 and the appendix framed thereunder have no legal existence. Since all powers vest in the Board of Directors, only the said Board could have delegated the powers to the various officers mentioned in appendixes appended to the Staff Service Rules, 1987 Since the executive board does not exist nor is the delegatee from the Board of Directors, it could not delegate the powers to the various officers mentioned in the appendixes. In the absence of any such legal delegation the competent authority, therefore, would be Board of Directors. If the Board of Directors had legally delegated its powers, then the delegatee could have been characterised as the competent authority. So not only the charge‑sheet was given and inquiry officer was appointed by an incompetent authority but even the dismissal order .was not passed by a competent authority. 1f there is any other document which created the executive board and shows that the Board of Directors had delegated its powers tot, then since such a document has not been disclosed nor placed on the file, it cannot be presumed that the executive board was the delegatee and had legally delegated its powers. In the absence of any evidence about the competency of the delegation of powers only that officer could charge‑sheet and appoint Inquiry Officer and punish the respondent who was his appointing authority but no such evidence has been pointed out by the learned counsel for the appellant on the record in this respect also. Even if a person having no power a person, by appointing he gets automatically the powers of removing that person from service or taking action against him for any dereliction or misconduct committed by him. There is no evidence that either appellant No, 3 or appellant No. 2 was the appointing authority. So the finding of the learned lower Court that incompetent authority had given charge‑sheet and appointed inquiry Officer is correct although the approach of the learned lower Court to the issue is not correct.

4. However, I do not rind any force in the argument of the learned counsel for the respondent that the allegation made against the respondent did not amount to misconduct. The respondent made interpolation in the Nikahnama and produced the same to the authorities for claiming marriage grant. According to rules, the marriage grant can be allowed if the employee got married after joining service and not before that. If the respondent had given correct date of his Nikah in his application and had not made interpolation in it and had applied that although the Nikah was held before he came into since the marriage was consumated after he joined service, therefore, he be given marriage grant, there would have been no misconduct on his part. The provisions of paragraph 258(2) of the Wage Commission Award, 1975 are very exhaustive and embrace the act done by the respondent in the acts which amount to misconduct. So back benefits have been rightly disallowed to the respondent on account of technical defect which is that it was not proved that appellant No. 3 who gave the charge sheet and appointed Inquiry Officer was competent and that appellant No. 2 who passed the dismissal order also had jurisdiction in that behalf. In reality both of them may be competent but since it was not proved on the record, the defect remains only to the extent of technicality and where on account of a technical defect the dismissal order is set aside, the employee may not be entitled to back benefits. In cases where either the allegation shade does not amount to misconduct or offence has not been brought home or the employee has been conducted unheard, the employee may be entitled to back benefits.

5. As a result, both the appeal fails and are dismissed. A.E./541/Lb. P Appeals dismissed.