This labour appeal has been filed against the Order dated 6.7.2002 passed by the learned Presiding Officer, Labour Court No, 6, Hyderabad, whereby the grievance petition of the applicant/appellant, filed under Section 25-A of Industrial Relations Ordinance 1969, was dismissed.
The facts leading to the case are that applicant/appellant was appointed as Grade III Officer Allied Bank of Pakistan in 1982. According to him his record was above board for all purposes and was promoted as Grade II Officer in 1995 and was posted in Foreign Exchange Branch of respondent bank at Station Road, Hyderabad. On 4.3.1988 he was served with explanation. He denied the allegation submitted reply but, enmity was staged against him and at the close of enquiry the lenient view was suggested to be taken against him but without hearing him in person and without Final Show-Cause Notice he was dismissed vide dismissal letter 16.12.1999.
After filing appeal and serving grievance notice upon respondent bank he filed Grievances Petition No, 33/2000 in the Labour Court No, 6; Hyderabad. He claimed that during his long association with the bank his work and conduct remained above broad and was awarded with some special increments. He further claimed to be workman and his service were governed by the Labour Laws.
He further claimed that he had no powers of higher and his duties were manifestly and clerical nature. He alleged that inquiry officer was against him and was predetermined and played the role of prosecutor and a Judge. He was further condemned un-heard and no Final Show-Cause Notice was served upon him. He filed departmental appeal but it not replied the therefore, prayed, the may be re-instated in service with all back benefits.
The respondent Bank filed written statement in which the jurisdiction of the Court and status of appellant to be workman was challenged. Respondent bank contended that appellant was an Officer Grade H drawing much more pay then of a workman and was performing administrative duties and was in-charge of his Section entrusted with power of attorney, therefore, he was not a workman and could not maintain his grievances petition before Labour Court. According the, respondent bank the appellant being In-charge Foreign Exchange Section committed misconduct as such he was served with explanation and the inquiry officer reported against him, therefore, he was dismissed from the service.
On the pleadings of the parties following issues were framed:--
1. Whether the applicant was a workman?
2. Whether the applicant is entitled to maintain the Grievance Petition?
3. Whether the Grievances Notice was served by the applicant upon respondent?
4. Whether the establishment where the applicant was employed at material time in number workman were less than 20? .
5. Whether the jurisdiction of this Court is barred by Article 212 of the Constitution of Pakistan?
6. Whether the conduct of the applicant during the service was filled with plot and blemishes?
7. Whether this application is time barred?
8. Whether proper inquiry was held before dismissing the applicant from his service?
9. Whether the applicant stood proved guilty in the inquiry?
10. Whether the order of dismissal was passed by the competent authority appointed by the respondent?
11. What should the decree be?
In evidence the petitioner filed his own affidavit and re-asserted the facts as stated by him in his grievances application. He was cross-examined by the respondent witness on the other hand the respondent bank examined his officer Nafees Noor, who filed his affidavit in evidence and produced the documents including the inquiry report, explanations, dated 11.7.1999. Respondent further examined their enquiry officer.
However, the learned Presiding Officer while deciding Issues Nos, 1, 2, 5, touching the maintainability of petition and jurisdiction of the Court, dismissed the applicant's grievances petition.
The applicant then filed department appeal against his dismissal and thereafter filed this appeal.
I have heard Mr. Nadir Hussain Shah, the learned counsel for appellant and Mr. Shahid Anwar Bajwa for the respondent. Both the counsel for respective parties advanced their arguments.
Learned Advocate for applicant that according to Bank Circular Letter No, 12 dated 2nd March 1989 has issued to all Zonal Chiefs, all Circle Executives all Area Regional Chiefs and all Divisional heads that the charge sheet should contain the charge level against the accused in detail charge sheet should be issued within one month from the date of cause of action brought to the knowledge of the bank.
It is next argued that the misconduct/irregularity committed by the applicant came to the notice of respondent Bank on 25.10.1997 but applicant was given first explanation on 4 i,e, after 131 days. which according to the Bank Circular No, 12, is time barred and therefore, no action could be passed/maintained on time barred Charge Sheet.
It is further added that the applicant was served by some other explanations viz. dated 11.7.1998, 1.1.1999, 19.7.1999, 28.7.1999 and 24.9.1999, but such explanations are again time barred by, 21 months, 18 months, 16 months, clearly time barred in view of Bank Circular No, 12 prevailing at the time of action.
In support of above contentions the relevant Paras of circular Letter No, 12 is referred as under: "ALLIED BANK OF PAKISTAN LIMITED CENTRAL OFFICE KARACHI CIRCULAR LETTER NO. 122nd March, 1989.
ALL ZONAL CHIEFS ALL CIRCLE EXECUTIVES ALL AREA REGIONAL CHIEFS ALL DIVISIONAL HEADS, C.O. KARACHI RE: DISCIPLINARY ACTION AGAINST EMPLOYEES. On the recommendations of the Wage Commission, Staff services Rules were framed in the year 1981 and later on amended up to 31.8.1983. These rules were sent to all the branches, Zonal Offices and Circle Offices, Chapter IV of these rules deal with discipline, general conduct and punishments.
ISSUANCE OF CHARGE SHEET.
The Charge Sheet should contain the charge leveled against the accused in details. According to the provisions of law and a Charge Sheet should be issued within one month from the date the cause of action has been brought to the knowledge of the Bank. It has particular been noticed that in cases of unauthorized absence of an employee the action has been unduly delayed. The Competent Authority should issue the Charge Sheet for absence of more than 10 days immediately on the twelfth day of the absence of an employee. Charge Sheet must be issued by Registered A/D on his given residential address or at his last known address on record."
As regards the maintainability and jurisdiction of the Court it is argued that the Labour Court while deciding Issues Nos, 1, 2 and 5 came to the conclusion that applicant/appellant was not workman, therefore, he could not maintain his petition and then the jurisdiction of the Labour Court was barred by Article 212 of the Constitution of Pakistan. Reliance has been placed on number of authorities including the decisions of the Honourable Supreme Court summarizing the law that the designation or the pay is not the real criteria for holding that the applicant is not a workman but it is the duty he performed during this employment. The reliance has been placed on Dost Muhammad Cotton Mills Ltd. Karachi vs. Muhammad Abdul Ghani and another (PLD 1975 Karachi 342), Allied Bank of Pakistan Ltd., vs. Muhammad Humayum Khan and others (1988 SCM R 1664), National Bank of Pakistan vs. Punjab Labour Court No, 7 Gujranwala and others (1992 SCM R 1891), Emirates Bank International and another vs. Rana Zahid Iqbal and 2 others (1999 CLC 302) and President United Bank Ltd and others vs. Iftikhar Hussain Khan (2003 CLC (C.S) 497). Where the dismissal of the petitioner was not upheld and Supreme Court allowed the petition.
It is next argued that before Federal Service Tribunal in Appeal Nos, 1994 to 1996 and 1998, and other number of petition taken together, petitions were filed against President Allied Bank of Pakistan and while deciding the status and maintainability of petitioner and petition it was held that the Labour Courts have jurisdiction to hear the grievance of employees/officers of M.C.B. and A.B.L. up to Officers of AVP rank. Such observations of the Honourable Supreme Court also find place that the employees/officers up to the level of A.V.P. can maintain their grievance petition before the Labour Court and dismissal of his grievance petition under the above legal position could not be maintained.
In view of this legal position it is urged that the applicant being Manager Grade-II could maintain grievances petition before the Labour Court and dismissal of his grievance petition under the above legal position could not be maintained.
The evidence particularly cross-examination of respondent witness has proved that the petition of petitioner before Labour Court was maintainable. The respondent witness has relied in cross- question as under:-- "It is fact that employees of every branch is controlled and supervised by the Regional office. I cannot give the exact number of the officers posted in Foreign Exchange Branch at Hyderabad at that time. The petitioner has not power to appoint any employee or terminate the services of any one. The Manager of the branch controlled the Foreign Exchange Section and he was answerable to the Manager. Manager and Incharge were making the correspondence with other branches of some other Banks by the Foreign Exchange Section with joint signature. The branch where the Foreign Exchange Section was working was under City Circle of our Bank, now the Circle have been abolished and Regional Offices are substituted. At present, there is single Region of Hyderabad, which covers all the branches of Hyderabad area. There are 65 branches in Hyderabad region. In every branch current and PLS accounts are being operated. Entire account holders are paid the profits and all branches get the profit declared by the Head Officer. The Regional office is transferring the employees of the branches. The Head office maintains the seniority of staff of all the branches and the branch is providing information. The promotion of the staff is being considered and decided on fitness and seniority. I have based my evidence on record, which is provided to me by the Regional Office. There is system of internal audit of the branch. Once in the year internal audit is being made regularly while it is also being made surprisingly in every year.
There is permanent Internal Auditor posted in the branch where the petitioner was posted and on his irregularity the mishap committed by the petitioner came on surface explanation dated 4.3.1998 is based on that audit report. I cannot say before the dismissal of the petitioner he was not given Final Show-Cause Notice. I have not produced that Notice. It is fact that before passing a dismissal order no personal hearing was given to the petitioner. I cannot say if even after filing appeal no personal hearing was given to the petitioner. Since the grievance notice is not available on record, therefore, I say it was not sent to us.
From this evidence of the respondent witness, it is very clear that the petitioner was not independent official but he was sub-ordinate and answerable to his officers keeping second position in the branch.
The learned counsel for the respondent bank argued mainly on the point that the appellant is not a worker under the definition of Section 2 of I.R.O. 1969. On the question of Court he frankly conceded that the action was not taken within the time prescribed by the Circular Letter No, 12 dated 2nd March 1989. He relied upon the reported cases (1) National Bank of Pakistan vs. Punjab Labour Court No, 5 Faisalabad and 2 others (1993 PLC 595 (Supreme Court of Pakistan ) (2) M/s Habib Bank Limited Karachi vs. Sindh Labour Appellate Tribunal and another (1993 PLC 278 Karachi High Court),
(3) Muslim Commercial Bank Limited vs. Mehmood Hussain Larik (2004 PLC 371 Karachi High Court),
(4) Muslim Commercial Bank Limited vs. Muhammad Khan Abro (2004 PLC 299 Karachi High Court), (5) Muhammad Ali vs. Sindh Labour Appellate Tribunal and 2 others (1985 PLC 403 Karachi High Court) and (6) Ganga R. Mad hani vs. Standard Bank Ltd., and others (1985 SCM R 1511). He also relied upon an unreported case of this Court vide Appeal No, 107/2004 Dilshad Khan vs. Allied Bank of Pakistan Ltd, and others.
The learned counsel for respondent bank has not placed any authority of Apex Court in respect of maintainability of grievances petition of an officer/AVP of Allied Bank of. Pakistan Ltd, before the Labour Court as decided by Supreme Court of Pakistan in a Civil Appeal No, 247 of 1998 Rao Ghulam Murtaza vs. M.C.B. and others. The Federal Service Tribunal followed the Supreme Court of Pakistan while deciding the Appeals No, 1994 to 1996 and 1998, and other number of petitions taken together. Petitions were filed by the officers up to the rank of AVP against the order of dismissal issued by the President Allied Bank of Pakistan. The Federal Service Tribunal while deciding the status and maintainability of petition and petitions, it was held as under:-- "4. The above legal position was also examined by the Honourable Supreme Court of Pakistan in Civil Petition No, 247-L of 1998 titled "Rao Ghulam Murtaza v. M.C.B. and others" decided on 23.4.1999 and it was held that the Labour Courts have jurisdiction to hear the grievances of the employees/officers of M.C.B/ABL. There is no reason as to why the earlier decisions of this Tribunal and the pronunciation of august Supreme Court of Pakistan may not be followed in the present appeals to follow the law of consistency and we order accordingly."
The plea and substance of above points makes it clear that petitioner was Workman under I.R.O.
1969 and under Standing Orders Ordinance, 1968 and was well within the meaning of workman and could maintain petition before the Labour Court. The findings of Labour on Issues Nos, 1, 2 & 5 are erroneous and liable to be set aside.
The learned advocate for respondent Bank then alternatively gave impression that the case may be remained to the Labour Court for its fresh decision after haring the parties particularly on the issues, which are not replied by the Labour Court. The learned advocate for applicant/petitioner was opposed this suggestion and argued that appeal is continuation of proceedings and then the Appellate Court is well within competence and within jurisdiction to decide other issues, which are not relied by the trial Court. He next argued that the misconduct came to the notice of Bank on 25.10.1997 and time barred explanation was given to the applicant on 4.3.1998 and then after two years the inquiry was held and applicant is removed/dismissed from service, therefore, this is a case of hardship and the Appellate Court can decide the issues according to the evidence and may decide the appeal on the evidence, available on the record. The learned counsel for the respondent bank frankly conceded the delay on the part of respondent bank It is proposed that other issues framed by the trial Court can be decided by the Appellate Court to avoid hardship to the petitioner.
The counsel for the petitioner further argued that in this inquiry whereby the petitioner has been dismissed clearly reads that no financial loss is caused to the bank but it has earned crores of Rupees through the petitioner. There is no misconduct on the part of the petitioner. Further it is proved on record and written in opinion of all other explanation/inquiries that Bank has not sustained loss but had earned Millions of rupees through applicant. As stated above that in time barred explanation the Inquiry Officer reported against applicant that misconduct is proved against him but than Circle Executive Mr. Abdul Ghaffar Khan and Zonal Chief City Zone, Hyderabad Syed Suhail Fahmi recommended the lenient view to be taken against the petitioner by issuing him a letter of warning but he was dismissed from service without giving him Show-Cause Notice or hearing him in person.
Admittedly the petitioner/applicant was given dismissal letter instead of letter of warning although the enquiry officer proposed the same. This is not only act which proves that they were adamant to remove the petitioner from service but the other acts of respondent also proves that enmity with the applicant. Surprisingly noted that while the applicant/facing enquiry on a belated charge sheet, the respondent bank issued one explanation in 1998 and five explanations, one after one, issued to him in between 1.1.1999 to 24.9.1999 although no inquiry officer found any irregularity or illegality on the part of applicant, hence all the enquiry-officers exonerated from the allegations/charge.
In the circumstances, fact and legal position, the remaining issues are decided in view of the evidence available on the record, the issues are replied as under:-- ISSUE No,
3. Whether the grievance notice was served by the applicant upon the respondent?
The applicant has pleaded in his grievance petition that grievance notice was service upon the respondent and he produced such receipts. Respondent witness simply denied the service of the grievance notice by saying that since the copy of the grievance notice was not in the file provided to him for contesting the case; therefore, he said that the grievance was not served upon respondent. But the assertions of applicant and documents it is replied that grievance notice was served upon respondent before failing the case in Labour Court.
ISSUE No,
4. Whether the establishment, where the applicant was employed for material time number of workman were less then 20?
The respondent witness has replied to a specific question: "I cannot give the exact number of the officers posted in Foreign Exchange Branch at Hyderabad at that time. He further replied that the employees of every branch is controlled and supervised by the regional office. The Foreign Exchange Section of our branch was working under City Circle of their Bank. That there are 65 branches and the Regional office is transferring the employees of the branches. The Head Office is maintaining the seniority of staff of all the branches and the promotion of the staff is being considered and decided on fitness and seniority."
This admission from the respondent witness clearly proves that this Foreign Exchange Section was not independent but was subordinate Branch to the Regional Office, therefore, it will be said that there were more than 20 workers in respondent Bank, which were being jointly controlled by the Head Office.
ISSUE No,
6. Whether the conduct of appellant during the service was filled with blot and blemishes?
Against this issue the applicant has claimed that there is no spot on his career but he was above board and was awarded which special increment, letter of appreciations and was being declared to be honest and hard working. On the other hand the respondent witness has not produced any other record except these explanations and charges and dismissal of applicant but if all the explanation and inquiries as reported are read, the misconduct is not proved against the applicant but some irregularities were found and the Bank sustained on loss. On the contrary the Bank inquiries are replied that no misconduct is proved against the applicant and in number of inquiries he has been exonerated, therefore, these facts could not be taken against the applicant as blot on his career.
ISSUE No,
7. Whether this application is time barred? The applicant was dismissed from service on 16.12.1999. He sent Grievance Notice to the respondent on 8.2.2000 and then filed grievance petition on 15.3.2000, which clearly show that the application was filed within time. The respondent Bank has not proved by document that it is time barred. It is, therefore, held that grievance petition was within time.
ISSUE No,
8. Whether a proper inquiry was held before dismissing the applicant from his service?
The fact is admitted on record that the misconduct came to the knowledge of the respondent Bank on auditor's report, reported on 25.10.1997 but the applicant was served with explanation on 4.3.1998 i,e, after 131 days. Which is clearly, time, barred. Thereafter the inquiry was conducted against him after two years i,e, on 24.9.1999, while dismissal on 12.12.1999. No proper procedure is adopted while conducting inquiry and no Final Show-Cause Notice was given to the applicant. Again the Zonal Chief and Circle Executive recommended lenient view to the taken against the applicant but without giving him Final Show-Cause Notice or before passing dismissal order he was heard in person, which is clear violation and such action cannot be maintained and could be said that the proper inquiry was not held before dismissing the applicant.
ISSUE No,
9. Whether the applicant stood proved guilty in the inquiry?
From the above discussion it is proved on record that proper inquiry was not held against the applicant. The Circle Executive and Zonal Chief recommended lenient view against him but he was dismissed without giving him Final Show-Cause Notice and hearing him in person, therefore, it can be very well said that the applicant was not proved guilty in the inquiry.
ISSUE No,
10. Whether the order of dismissal passed by the competent authority appointed by respondent?
ISSUE No,
11. What should the order be?
Issue Nos, 10 and 11 are answered together in this Para. From the above discussion, the evidence recorded in the case and recommendation of Circle Executive and Zonal Chief that lenient view may be taken against the applicant, his dismissal under the circumstances is harsh order against the applicant. It is again admitted an record that no misconduct is proved against the applicant but some irregularities were brought to the notice of President of Bank. It is admitted on record that the Bank has not sustained any loss at the hands of the applicant but was earned Millions of rupees, therefore, the lenient view ought to have been taken against the applicant but it seems that the harsh orders is passed against the applicant for some other reasons otherwise no case of dismissal is proved against the applicant.
The harsh action of respondent bank i,e, dismissal from service of applicant cannot be appreciated particularly when enquiry officers suggested for issuance of only warning letter. The Supreme Court of Pakistan also discouraged the dismissal from service, as the same is not warranted. The Supreme Court in a case President United Bank Ltd, and others vs. Iftikhar Hussain Khan and an others (2003 PLS (C.S.) 497). The observation is reproduced as under:-- "6. Since it is proved through record that the respondent refunded amount very late and he has violated the rules of the bank, as such, keeping in view the above provisions, we are of the considered opinion that total exoneration of the respondent from charge was uncalled for.
However, the dismissal from service in our opinion it also not warranted.
The case of the applicant/appellant is not even fit for any penalty. The order of his dismissal is, therefore set aside and he is re-instated in service with back benefit with immediate effect.
However it was suggested by Zonal Chief and Circle-Executive that the lenient view is to be, taken against him. Therefore, I am of the view that his further increment for two years be stopped, which will meet the ends of justice.