AKBAR M. MEMON, MEMBER.- Appellant-National Bank of Pakistan has filed this appeal under Section 4 read with Section 6 of the Service Tribunals Act, 1973 wherein following prayer has been made:- "It is therefore prayed that this Hon'ble Tribunal may be pleased to make orders:-
(a) declaring that the said decision dated 29.10.1989 of the respondent No. 3 and the said order dated 29.11.1988 of the respondent No. 2 are without the authority of law and of no legal effect."
(b) directing the respondents 2 and 3 and their subordinates, servants and agents to refrain from enforcing the said decision of the respondent No. 3 and the said order of the respondent No. 2 impugned herein; and
(c) making such further or other orders as may appear to this Hon'ble Court just and proper in the circumstances of the case."
2. Mr. Zaheer Minhas associate of M/s. Noor Muhammad and Co. Appearing for the appellant has contended that the respondent No. 1 (Munir Ahmed) who was lastly working at their Garhi Khairo Branch was issued a notice of penalty under the terms and conditions as laid down in the Staff Service Rules on 17.8.1983 for having granted loans to 339 borrowers amounting to Rs. 18,00,000/- by ignoring the rules. He has contended that the respondent while replying the notice has admitted that the loans were sanctioned by k him as per rules on which inquiry was ordered and on the basis of report of Enquiry Officer he was dismissed from service vide officer order dated 13.5.1985.
He has contended that against the said order the respondent preferred an appeal, which was addressed to the Senior Vice President on 12.6.1985. He has contended that in the said appeal he had not made mention of the fact that his case being that of a "workman" is covered under IRO, 1969, but subsequently respondent filed grievance notice under Section 25-A of IRO, 1969 on 18.8.1985. He has contended that the grievance notice itself was time-barred, then too, grievance petitioner filed by him was allowed by the learned Presiding -Officer, Sindh Labour Court No. VII whereby he was ordered to be reinstated with all back benefits vide order dated 29.11.1988 against which the present appellant approached learned Sindh Labour Appellate Tribunal (SLAT) by filing Appeal No. SUK-401/88, which was dismissed on 29.10.1989. The appellant then approached Hon'ble High Court by filing C.P. No. D- 76/89 which, however, was abated vide order dated 27.11.1998 and as a result thereof present appeal has been filed by the appellant before this Tribunal on 26.12.1998, following the rule of law enunciated by Hon'ble Supreme Court in the case reported in 1999 SCMR
197. He has contended that para 4 of the comments be seen where it has been stated that respondent No. 1 held the rank of Officer Grade-Ill, as^ such, how could he have been held to be a "workman", as such, the present appeal has been filed before the . Tribunal to arrive at a proper conclusion as to whether I the respondent was, in fact, was a "workman" or otherwise, In support of his contentions, he has placed reliance on 2002 PLC (CS) 18 and 1999 PLC (CS) 329.
3. Mr. Agha Faqir Muhammad, learned counsel for the respondent No. 1 has argued that the appellant- f Bank has no case at all as, according to him, the grievance petition filed by respondent No. 1 was I allowed by the learned Labour Court which order was maintained by learned SLAT where appeal filed by the appellant-Bank was dismissed. He has contended that after the order of reinstatement in service was maintained by the learned SLAT, respondent No. 1 had acquired vested right, which cannot be taken away by the appellant-Bank by simply filing appeal before this Tribunal where they have specifically challenged the ^ orders passed by respondents Nos. 2 and 3 on 29.11.1988 and 29.10.1989 respectively. He has contended that Article 212 of the Constitution of Islamic Republic of Pakistan employers the Service Tribunal to hear such appeals where Article 199 ibid empowers Hon'ble High Court, but the way in which the appellant-Bank has challenged the orders of two legal fora and intend to disturb the findings of the said fora doesn't appear to be in accordance with the provisions of law. As regards the authorities cited by the learned counsel for the appellant-Bank reported in 2002 PLC (CS) 18, he has contended that the said authority is distinguishable as the facts of the case are quite different. He has, however, placed reliance on 2001 SCMR 328 and 2002 SCMR 1023.
4. Mr. Zaheer, learned counsel for the appellant- Bank, in reply has contended that in case the respondent was a workman then his grievance petition was time-barred.
5. After hearing arguments of the learned counsel appearing for the parties, we have gone through the appeal file and so also the authorities cited by the learned Advocates appearing for both the parties.
6. It is an admitted fact that the respondent No. 1 while serving with the appellant-Bank was dismissed from service vide order dated 13.5.1985 and after serving grievance notice upon the appellant approached the learned Labour Court No. VII, Sukkur where his dismissal order was set aside vide order dated 29.11.1988. Consequently the present appellant-Bank filed appeal before the learned SLAT against the orders of learned Labour Court which appeal was dismissed on 29.10.1989.
The Appellant-Bank then filed Petition No. D-76/89 before Hon'ble High Court which was abated on 27.11.1998 whereafter the present appeal was filed.
7. Coming to the merits of the present appeal we intend to bring it on record that the learned counsel for the Appellant-Bank has prayed for declaring decision of respondents Nos. 2 and 3, which, were. Made on 29.11.1988 and 29.10.1989 to be without lawful authority where the status of the respondent being that of "workman" has been discussed. For the sake of convenience, we intend to reproduce a para of page 5 of the order of learned Labour Court: "It is the case of the applicant that he was appointed in the Bank on 5.8.1978 and was performing his duties satisfactory and when he was posted at Ghari Khairo Branch of the Bank in 1983 when he was designated as Manager but in fact he was officer Gr. Ill and was performing clerical duties such as preparing vouchers making entires in the registers and was also doing balancing of account and other duties of clerical nature. The charge-sheet dated 17.8.1983 containing the period from 20.6.1982 to 17.8.1982. The charge-sheet was issued during the course of his employment as Officer Gr. Ill of the Branch he was found guilty for granting loans to the fictitious persons. The period of alleged offence was on 20.6.1982 to 17.8.1982 but charge-sheet was given to the applicant on 17.8.1983 therefor it is barred by law of limitation as charge-sheet of the offence is to be served upon the applicant within the period of one month but it was served beyond statutory period of one month therefore it is barred by law of limitation".
Similarly paras 11 and l2 of the decision of learned SLAT is also reproduced as under:- "In view of this Supreme Court ruling there can be no dispute that dismissed workers are covered under the definition of ' workman' in the I.R.O., 1969. Most of the workmen approach the Labour Court for the reinstatement after dismissal and if they are taken outside the purview of 'workman' then the purpose and spirit of the Ordinance would stand practically defeated.
12. In view of the above discussion I am of the opinion#that the respondent is a workman as defined in IRO, 1969. He had right to be proceeded against under 1973 Rules but his that right has apparently been infringed and he has been proceeded against and removed under Staff Rules of 1980, which were inapplicable and as such the dismissal order passed by the appellants is not sustainable and is nullity in the eye of law and has been rightly set aside by the Labour Court. I find no merits in this appeal which is, accordingly, dismissed."
In both these fora the appellant-Bank was represented by their counsel and once the matter regarding the status of the respondent was decided by two fora, it will not be possible for this Tribunal to open past and closed chapter as the matter before these two fora was fully contested by the appellant-Bank through their counsel, In an identical situation their Lordships in the Supreme Court in a case Civil Aviation Authority v. Izhar Ahmed and 144 others, reported in 2001 SCMR 328 had held:-
(d) Service Tribunals Act (LXX of 1973)- -Ss. 2-A and 6-Constitution of Pakistan, 1973, Art. 212-Abatement of proceedings- Insertion of S. 2-A in Service Tribunals Act, 1973-Effect-Service matter was decreed by Civil Court prior to 10.6.1997- Authority preferred appeal before District Judge but during pendency of the appeal,, S. 2-A was inserted in Service Tribunals Act, 1973, consequently the appeal was dismissed as abated-Authority filed appeal under Ss. 2-A and 6 of Service Tribunals Act, 1973, but the same was dismissed in Umine-Cw/W servant filed execution application and the Authority resisted the same by filing objections- Executing Court overruled the objections and allowed execution-Such order of the Executing Court was upheld by the Appellate Court as teII as by the High Court in revision- Contention of the Authority was that as the appeal was continuation of the suit and the appeal having been abated by operation of law, the execution application had become infructuous as there was no decree for execution-Validity-Only the pending appeal had abated and the decree passed prior to the target date i.e. 10.6.1997 could not be said to have been abated because of promulgation and insertion of S. 2-A into Service Tribunals Act, 1973-Judgment and decree unless either set aside or reversed by the higher Court or was so declared to be nullity by operation of law, same could not be said to have become ineffective, inoperative and in-executable when the decree-holder had acquired vested rights which could not be taken away subsequently because of abatement of pending proceedings."
Similar view was also taken by the Hon'ble Supreme Court in a case reported in 2002 SCMR 1023, where it was held:-
(d) Service Tribunals Act (LXX of 1973)- -Ss. 2-A (as inserted by Service Tribunals (Amendment) Act (XVII of 1997) w.e.f. 10.6.1997, 4 and 6- industrial Relations Ordinance (XXIII of 1969), Ss. 25-A, 27 and 38-Constitution of Pakistan, 1973, Arts.
199 and 212(3)-Jurisdiction of Service Tribunal- Scope-Respondents/employees as a result of transfer from another Mill joined the petitioner Corporation on 19.6.1989, over which they were informed through order dated 18.7.1989 that their seniority would be counted from their joining the service of Corporation- Respondents challenged such order before Labour Court, which set aside the same on 19.2.1994-Appeals filed by the petitioner before Labour Appellate Tribunal were also dismissed on 14.12.1995 maintaining the order of Labour Court-Constitutional petitions filed by petitioner challenging both the orders of Labour hierarchy stood abated after promulgation of S. 2- A of Service Tribunals Act, 1973-Petitioner thereafter filed appeals before Service Tribunal which were dismissed- Validity-After remained in the field as legal, valid and effective orders having attained finality, thus, determination of seniority of respondents became a past and closed transaction-Vested right had been created in favour of respondents by insertion of S. 2-A in Service Tribunals Act, 1973-Service Tribunal having been vested to exercise jurisdiction in appeal of civil servant against the original or appellate order passed by Departmental Authority would have no jurisdiction in nullify/set aside orders/judgments of Labour hierarchy, which had attained finality having also become past and closed transaction creating vested right in favour of the respondents, particularly when the orders of Labour hierarchy could not be termed to be orders of the Departmental Authority-Order of Labour hierarchy, which had attained the finality could not be said to have been ineffective, inoperative and unexecutable, unless and until those were set aside by the competent forum under the law-Service Tribunal had no jurisdiction- to determine the legality or propriety of order dated 18.7.1989 passed by petitioner, which had been set aside by Labour hierarchy through its legal and valid judgments at relevant time creating a vested right in favour of the respondents-Supreme Court declined to grant leave to appeal and dismissed the petitions in circumstances."
The matter apparently was quite clear before us but another authority in respect of G.M. National Bank of Pakistan and others v. Abdu! Aziz and others, reported in 2002 PLC (CS) 18 = 2002 PSCC 95 came before Full Bench of Hon'ble Supreme Court where it was held:- "(b) Service Tribunals Act (LXX of 1973)- -Ss. 2-A and 4-Effect of insertion of S. 2-A in the Service Tribunals Act, 1973-Scope- Appeal- Maintainability-Jurisdiction of Service Tribunal-Matter was decided by Labour Court and appeal was pending before Labour Appellate Tribunal-By insertion of S. 2-A in the Service Tribunals Act, 1973, the appeal pending before the Labour Appellate Tribunal had abated and the matter was taken to the Service Tribunal-Appeal before the Tribunal was dismissed for lack of jurisdiction on the ground that the appeal before the Tribunal would be an appeal against the judgment of the Labour Court-Validity-Effect of S. 2-A of the Service Tribunals Act, 1973, was that notwithstanding any judgment rendered by the Labour Court, or any other forum, all such matters covered under S. 2-A of the Service Tribunal Act, 1973, stood abated-Service Tribunal alone had the exclusive jurisdiction to examine grievance of such persons-Judgment passed by the Service Tribunal was based on erroneous assumption of law that the appeal filed by the appellants was benefit of jurisdiction in the matter Service Tribunal failed to appreciate the judgment passed by Supreme Court in the case titled Federation of Pakistan v. Muhammad Siddiq, reported as PLD 1981 SC 249, and fell in error by dismissing appeals of the appellants on the ground of maintainability and lack of Jurisdiction- Judgment passed by the Service Tribunal for decision afresh-Petition for leave to appeal was Converted into appeal and the same was allowed."
Keeping in view the above legal position and also Article 189 of the Constitution of Islamic Republic of Pakistan, we are of the opinion that the law laid down by the Hon'ble Supreme Court is binding on all Courts of the country including this Tribunal, but with humility and reverence we would like to bring it on record that observation of Hon'ble Supreme Court reported in 2002 PLC (CS) 18 is somewhat distinguishable as in the- above cited as the matter was remanded for fresh decision and according to placitum (d) it was observed:- "(d) Service Tribunals Act (LXX of 1973)- -Ss. 4 & 6-Abatement of proceedings pending before other forums-Procedure to be followed by Service Tribunal-Jurisdiction of Service Tribunal-Scope-One such appeals are filed, it is the duty of Service Tribunal to determine afresh as to whether the original order passed by the Authorities against the employees were lawful or otherwise on the basis of the Service Rules or any other Rules applicable to the employees."
It was observed by their Lordships of the Hon'ble Supreme Court that original order which was passed by the authority against the employee was lawful or otherwise. We are of the view that original order was that of dismissal from service on the legal plan that the respondent had granted loan to 339 borrowers amounting to, Rs.18,00,000/- by ignoring the rules. This point was elaborately discussed by the learned Labour Court as well as learned SLAT, where the order of dismissal was set aside, as such, by filing the present appeal the appellant-Bank has made a prayer that the orders of two fora whereby impugned order was Hon'ble Lahore High Court in a case reported in 2001 PLC 603 where it was held:- * "(a) Constitution of Pakistan, 1973- --Art. 1^99-Constitutional petition-Concurrent findings of facts by the Courts below-Effect- Where Courts of competent jurisdiction had given verdict in favour of respondents, such finding could not be disturbed in Constitutional petition without production of material substance available with the petitioners in support of their plea."
2. As regards the arguments advanced by Mr. Zaheer, learned counsel for the appellant that in case the respondent No. 1 was "workman", the grievance notice was time-barred, In this regard, we would like to bring on record that this point has already been dealt with by two fora and considering the fact that under Section 25-A of I.R.O., 1969, period of limitation at that time was 90 days, therefore, this argument has no legal force.
3. We are afraid that we will not be in a position to open past arid closed chapter and on this score alone the appeal fails, which accordingly stands dismissed with no order as to costs.
4. Parties be informed accordingly.