' SYED AKHTAR NAQI NAQVI (SENIOR MEMBER).--- This order shall dispose of an appeal filed by MCB against the order dated A 13-11-1997 passed by Mr. Muhammad Zaman Qureshi learned Chairman NIRC as he then was, whereby he accepted a Petition bearing No,4A(662) of 1996-L filed by the respondent. The respondent contended in the aforesaid petition which was also produced in evidence as Exh.P.A. That he was employed as Cashier in the appellant-Bank on 1-3-1979 and by nature of his duties he fell under the definition of a workman as given in the IRO, 1969 (since repealed) henceforth be called as the IRO and that he remained posted in different branches of the appellant-Bank and he was working at the Railway Station Branch of the appellant-bank when he was issued a letter for dismissal from service by the appellant vide order dated 9-9-1992 which has been assailed by means of this grievance petition. The respondent contended that he filed a review petition before the President of the appellant-Bank for his reinstatement into service contending thereby that he was dismissed with mala fide intention and personal grudge of the Regional Manager City Zone of the appellant-Bank and that the inquiry against the petitioner was conducted with partiality and mala fide intention thereby destroying the respondent's future. The respondent contended that the said Regional Manager/respondent No,3 of the main petition served a letter of charge to him containing therein an allegation that he remained habitually absent B from the office without lawful authority and sanctioned leave and directed the respondent to file his reply within seven days.
2. The respondent replied to the said charge-sheet and requested the concerned authorities to transfer him to any other region because the officer of this region had a personal grudge against the respondent. The respondent denied the allegations as incorrect. He sent application for leave but the same was regretted and thereafter the respondent remained sick and sent a medical certificate which was also regretted although it was issued by the Medical Officer of the Bank. The respondent contended that he being an active member of the trade union and more particularly Hafiz Group of Staff Union registered for which the officers of the appellant were annoyed, they started victimizing the respondent on account of his trade union activities. The respondent further contended that the Regional Manager issued a letter of charge dated 14-5-1991 levelling the same charge of absence from duty which was replied by him denying the allegations as incorrect.
Thereafter the respondent filed a petition bearing No,4A(639) of 1991-L with an application for grant of stay in which the learned Member was pleased to restrain the appellant and its officers from passing a final order in the form of dismissal, removal or termination of services of the petitioner.
Respondent further contended that he was condemned unheard and on the basis of one sided inquiry, the officers of the appellant-Bank issued letter regarding dismissal of his service hence the respondent filed this petition for the reinstatement of his service challenging the order, dated 9-9- 1992 on the ground of its being against the law and fact and having been passed without lawful authority and based on conjectures and surmises therefore, liable to be set aside.
3. The appellant-Bank and its officers who were respondents in the main petition contested the grievance petition inter alia on the grounds that the same is incompetent as it did not disclose any cause of action and locus standi to invoke the jurisdiction of this Commission in the matter of dismissal of the respondent and that the case was not based on allegations of unfair labour practice, that the petition was barred by res judicata since the disciplinary proceedings initiated against the respondent and the inquiry held against him had already been a subject-matter of similar Petition bearing No,4A(639) of 1991-L previously decided by the learned Member Single Bench against the petitioner, that the petition was barred by laches and that the institution of disciplinary action under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is a prerogative of the employer and the same cannot be interfered with on flimsy grounds and since the impugned action was based on inquiry held against the respondent the matter was judicially examined by the learned Member in the earlier petition. On merits it was contended that the reply to the charge-sheet submitted by the respondent was found unsatisfactory and an inquiry was held against him in which he was found guilty of the charge. Thereafter a second show-cause notice was issued to the respondent and his explanation submitted in response thereto was also found as unsatisfactory. It was contended that the respondent was afforded full opportunity to defend himself in respect of charges contained in the charge-sheet. The allegation of unfair labour practice was denied as incorrect.
4. In order to prove his respective version the petitioner produced in his evidence his own Petition bearing No,4A(662) of 1996-L along with the documents Exh.P/1 to Exh.P/14 and closed the case.
When cross-examined by the counsel for the appellant, the respondent admitted correct that he had filed a petition earlier before the Commission under apprehension of his termination and got a stay order and that the said application was dismissed on 1-7-1992 vide Exh.R/1. On behalf of the appellant affidavit in evidence of M. Tanvir Ahmed Khan Staff Officer of the appellant-Bank was tendered but since the deponent did not turn up for cross-examination on his statement, the right of cross-examination of both the parties was closed and on the basis of available evidence on record Mr. Muhammad Zaman Qureshi learned Chairman, N.I.R.C. As he then was in his position as single Member accepted the petition vide order, dated 13-11-1997, set aside the impugned order, dated 9-9-1992 and directed the appellant and its officers/respondents of the main petition not to commit further acts of unfair labour practice against the respondent and to reinstate him into service from the date of dismissal. The said order has been assailed by means of this appeal. We have heard the learned counsel for the parties as quite some length and have also perused the written arguments submitted by both the parties.
5. There are certain miscellaneous applications filed in this appeal during its pendency for the last many years. The first Application bearing No,7A(52) of 2002 was filed by the appellant-Bank in which it was contended that the respondent has to prove his case through independent evidence and that pleadings are not evidence by themselves and since the respondent submitted his petition in his evidence, it could not have been taken into consideration,' hence the petition be dismissed on this ground. Vide Application bearing No,7A(53) of 2002 the appellant has assailed the act of the learned Member Single Bench whereby he allowed certain documents to be exhibited in an illegal manner and contrary to the provisions of law of evidence and requested for de-exhibiting the same. Vide Application bearing No,7A(54) of 2002-L, the appellant had requested for the dismissal of the main Petition No,4A(662) of 1999-L on the ground that neither, the witness of the appellant was cross-examined nor the respondent produced any document/evidence with regard to his trade union activities and alleged victimization. By means of Miscellaneous Application No,7A(55) 2002-L the appellant has contended that the judgment, dated 23-6-1999 passed by the learned Full Bench of. This Commission was challenged by the appellant in the Lahore High Court through Writ Petition No,12064 of 1999 which was accepted vide judgment, dated 16-11-2001 thereby holding the said Full Bench as coram non judice and setting aside its judgment with the result that the appeal was remanded to be heard by a competent and lawfully constituted Full Bench but since certain uncalled for observations were given in the said judgment, the appellant being aggrieved of these observations assailed the same before the Honourable Supreme Court of Pakistan through C.P.L.A. No,345/L of 2001. It is asked that pending decision this C.P.S.L.A. Would the decision of this appeal be proper? Vide Civil Miscellaneous Application No,7A(19) 2005-L filed by the respondent, it was requested that the appellant may be directed to reinstate the respondent into service as per decision dated 13-7-1997 of the learned Chairman N.I.R.C. (the impugned order) on the ground that the appellant filed an appeal before the Full Bench of this Commission against the said order and on 9-6-1998 the impugned order was suspended by the learned Full Bench comprising of only two learned Members and thus the Bench was not complete and the interim order was bad in law and therefore, not sustainable in the eyes of law and after the dismissal of the appeal, the appellant-Bank instituted a Writ Petition No,12061 of 1999 which was accepted on 16-11-2001 and order of the learned. Full Bench of this Commission, dated 23-6-1999 was set aside by the Honourable High Court with result that the appeal filed by the petitioner before the learned Full Bench of this Commission was to be decided afresh and thus the decision of the learned Member, remained intact and still holding the field. The respondent also contended that he appeared before the Honourable Supreme Court of Pakistan in person to face the appeal filed by the appellant-Bank against the order, dated 16-11-2001 passed by the Honourable High Court in the aforesaid Writ Petition and agitated this point on which the Honourable Supreme Court of Pakistan was pleased to observe that he can agitate this point before the Full Bench. By means of Civil Miscellaneous Application No,7A(24) of 2005-L filed under Order XIV, rule 27 the respondent wants to produce certain documents for perusal as according to him the same are very essential for just and proper decision of the case. The opposing parties contested all these applications. We have heard arguments on these application as well along with the arguments on the main appeal. These petitions shall also be disposed of while disposing of this appeal.
6. We would first take up Petition No,7A(52) of 2002-L by means of which the appellant-Bank has sought the acceptance of this appeal and dismissal of the Petition No,4A(662) of 1996-L on the ground that the respondent had to prove his case through independent evidence and not through the pleadings which cannot form part of evidence. In this regard he has referred to a few authorities of law reported as PLD 1972 SC at page 25 and some others. Since we are disposing of the main, appeal while discussing this aspect of the matter as well no separate order is required thereon. By means of Application 7A(53) of 2002-L the appellant bank has requested for De- exhibiting the documents P/1 to P/14 on the ground that the same were not lawfully proved. The same shall also be discussed along with the evidence on record hence on separate order is required thereon. Same is the case with Application No,7A(54) of -2002-L whereby dismissal of the grievance petition No,4A(662) of 1996-L is sought on the ground that neither the witness of the appellant was cross examined nor the respondent produced any documents/evidence with regard to his trade union activities. This point shall also be discussed while disposing of this appeal: By means of the Petition No,7A(55) of 2002-L the appellant has contended that the judgment, dated 23-6-1999 passed by the learned Full Bench of this Commission was challenged by the appellant in the Lahore High Court through Writ Petition No,12064 of 1999 which was accepted vide judgment, dated 16-11-2001 thereby holding the said Full Bench as coram non judice and setting aside its judgment with the result that the appeal was remanded to be heard by a competent and lawfully constituted Full Bench but since certain uncalled for observations were given in the said judgment, the appellant being aggrieved of these observations assailed the same before the Honourable Supreme Court of Pakistan through C.P.L.A. No,345/L of 2001 and since the questions are very much important and having direct bearing on the appeal in hand, it would be in the fitness of things to wait for the order of the Honourable Supreme Court of Pakistan. This application has become infructuous as the said C.P.S.L.A. Has been decided by the Honourable Supreme Court of Pakistan and the observations made in the judgment dated 16-11-2001 have been set aside. There is no denial of the fact by both the parties hence application has become infructuous. By means of Miscellaneous application bearing No,7A(19) of 2005-L, the respondent wants the Full Bench to direct the appellant to take him on duty on the ground that vide impugned order under appeal, the dismissal order of the respondent, dated 13-11-1997 was set aside against which the appellant- Bank preferred an appeal and the order under appeal was suspended by the learned Full Bench vide order, dated 9-6-1998. However, since the Full Bench was not constituted in a legal manner, the High Court set aside its order and a new Full Bench had been constituted and since the order of the former Full Bench regarding suspension of the implementation of the order under appeal had been set aside, there was no stay against reinstatement of the respondent into service. No order has so far been passed on this application and now since the main appeal is being disposed of today, the said petition shall become infructuous automatically hence no order need to be passed in that miscellaneous petition anymore. By means of Petition No,7A(24) of 2005-L the respondent seeks certain documents to be admitted in evidence. This application if accepted shall reopen the whole case and shall allow the respondent to remove the lacunas in the evidence hence the same cannot be accepted at such a belated time hence the same is dismissed.
7. The respondent had approached this Commission for setting aside the order dated 9-9-1992 whereby he was dismissed from service and for this purpose he had filed the Petition No,4A(662) of 1996-L on 4-4-1996 meaning thereby that he had been sleeping over the matter for more than three and half years. There was an objection with regard to the maintainability of the said petition in view of laches. To meet with this objection the respondent contended that he had filed an appeal before the President of the appellant-Bank and had been waiting for its reply. He produced a copy of that appeal Exh.P.2 on the back of which a stamp of the postal department with regard to its being registered post was affixed. In the first instance this contention would not help the respondent in justifying his conduct for filing the petition at such a belated stage because there is a provision that if a departmental appeal of this nature is not disposed of within a certain period the appellant was at liberty to have challenge the dismissal order before the appropriate forum.
This was not done and secondly there is no solid proof that this appeal was sent to the President of the appellant-Bank because the receipt affixed on the back of the Exh.P.2 could not have been considered as a proved document unless it was established as such through the executant of this receipt. There is a mode of proof of every document prescribed in law which was not followed by the respondent. This aspect of the matter was not taken into consideration by the learned Member Single Bench at all and no importance was given to this negligent conduct of the respondent. It does not stand to reason that a bank employee after having been dismissed from service on the basis of a so-called mala fide order, would keep on waiting for such a long period in challenging the said order. It appears that the respondent did not bother about the impugned order for his own reasons and at a very belated stage he assailed the same, although he was very much in the know of the proceedings which had been initiated against him on account of his misconduct for which he had earlier filed a grievance Petition No,4A(639) of 1991-L whereby he had assailed a show- cause notice and charge-sheet dated 14-5-1991 with regard to the same allegations that he remained absent from the branch of the bank unauthorizdely and was a habitual late corner. In this petition the learned former Member Single Bench vide his order dated 1-7-1992, after having been confronted with the position that an inquiry had been conducted and inquiry report was given against the respondent, dismissed that petition. The respondent never assailed or succeeded in getting the aforesaid order set aside by a competent forum. In this view of the matter his act on sleeping ever the matter for more than three and a half years renders this petition barred by laches. We would seek guidelines from an authority of law reported as PLD 1991 Lab. At page 282 whereby the Honourable High Court had observed that the doctrine of rules is based upon the maxim that equity aids the vigilant and not those who slumber on their right. It is defined as neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to either party, operate as bar in Court of equity. It is a neglect for an unreasonable and unexplained length of time under circumstances permitting diligence to do what in law should have been done. In the light of this precedent, the respondent was not entitled to any equitable relief. The learned Member Single Bench did not advert to this aspect of the matter.
8. Even otherwise what was the evidence on record to establish the respondent's claim, merely the respondent statement whereby he simply submitted the petition as Exh.P.A. Along with the documents P.1 to P.14 and stated that he is unemployed since his termination. In the first instance the law is clear on the subject that pleadings cannot be used as evidence. In this regard we would refer to a few authorities of law reported as 1993 MLD at page 2450 and 1992 CPC(sic) at page 152 whereby it was held that pleadings cannot form part of evidence. If this piece of so-called evidence is ignored there is no evidence on record in support of respondent claim. He has not uttered a single word about his so-called trade union activities which became a source of annoyance to the officers of the appellant-Bank who were compelled to commit unfair labour.
Practice. Even if he had said so, his solitary statement was not enough. He should have produced in evidence his colleagues to corroborate his version. A bald allegation of unfair labour practice has never been allowed to be accepted by the Honourable Supreme Courts. He did not even producing a certificate about his association with any registered trade union.
9. The respondent produced certain documents which are photostat copies of registered envelop Exh.P.7 and Medical Certificate Exh.P.8 to Exh.P.12. He also produced a copy from the Death Register Exh.P.13 with regard to death of his brother Aftab Ahmed Khan. In the first instance these document do not establish by itself that the respondent was lying sick since the doctor who examined the respondent was not produced in the witness-box to prove the medical certificates and secondly there is no evidence that the respondent was declined leave on account of these illnesses. The respondent has not produced the said applications and denial of leave thereon. He should have produced the same corroborative piece of evidence in order to establish this version which he had failed to do. What to speak of that, he himself did not make detailed statement while appearing in the witness-box with regard to allegation mentioned in the petition which as already observed cannot form part of evidence. In this view of the matter this is a case of no evidence on the part of the respondent but the learned Member Single Bench did not bother to take into consideration all these facts in spite of the fact that the respondent had been sleeping over the matter for more than three and a half years in invoking the jurisdiction of this Commission although he was so vigilant earlier that he- had assailed the charge-sheet by means of Petition No,4A(639) of 1991-L. If impugned order had been passed, it was even otherwise incumbent upon the respondent to have approached the appropriate forum and in this case it could have been the concerned Labour Court, since the alleged unfair labour practice had already been committed and was not likely to be committed. This aspect of the matter was also not taken into consideration by the learned Member Single Bench.
10. There was another aspect of the matter that the appellant-Bank produced its officer namely Mr. Tanvir Ahmed Khan who submitted his affidavit in evidence but on the very first day when the case was fixed for cross-examination on his statement, the right of cross-examination of both the parties was closed. The learned Member Single Bench did not appreciate that the respondent had already been cross-examined. It appears that no judicial mind was applied while passing the order, dated 9-9-1997 which cannot be sustained being illegal as this date was not sought by the appellant under its request, hence the right of cross-examination could not have been closed. Even otherwise the right of cross-examination was closed but the affidavit in evidence was on record and no order had been passed in connection with that affidavit submitted by Mr. Tanvir Ahmed Khan Staff Officer of the appellant-Bank. It would also have been taken into consideration for purpose of decision of this petition which was not done illegally and on the basis of presumptions, conjectures and surmises and without any solid evidence the claim of the respondent was accepted. We are absolutely unable to sustain this kind of order and this kind of judicial approach.
In this regard the appellant-Bank has filed another Civil Miscellaneous No,7A(44) of 2005-L at the eleventh hour whereby it has been requested to take judicial notice of the situation prevailing in the commission at a time when the order subject-matter of the present proceedings was passed said situation of the Commission has been reported in "The Pakistan Telecom Company Lions Staff Union Lahore through President v. The National Industrial Relations Commission through Chairman-cum-Registrar and 2 others 1999 PLC at page 320. We would like to reproduce the relevant portion of the said reported judgment which is in the following terms:-- "Before parting with these cases after going through the judgment, dated 15-7-1998 of the Chairman NIRC and the judgment, dated 31-8-1998 of the Full Bench both subject-matter of these Constitutional petitions one comes to an irresistible conclusion that there is a judicial anarchy in the working of the NIRC. The Full Bench as quoted the observation of my learned brother Ihsan-ul- Haq Chaudhry, J. Quo the working of NIRC reported in Nishat Group of Industries and another v.
Chairman NIRC and others 1997 PLC 622 which is in the following terms:-- "It is a matter of great regret that the Government makes appointments to such sensitive posts recklessly. The Government, if serious to keep these institutions for the industrial peace in the country then these Tribunals have to be manned by persons of integrity and quality otherwise it would amount to sheer wastage of public funds."
' Learned counsel appearing for both the side have also made reference to such an atmosphere prevailing in the Commission I myself fully subscribe to the view of my learned brother quoted above that the working of the Commission is on decay and if some steps at the earliest are not taken to arrest this deteriorating situation it would be then too late in the day to mend the same"
(Underlines are ours).
' It has been contended that this judgment is a landmark in the history of NIRC that it has not only settled the questions of proposition of law for the guidance of all rather this judgment has also put a check upon using rather misusing the power illegally and unlawfully so much so that the term (Judicial anarchy) was used to such kind of working. In the light of this judgment it has been requested that this state of affairs as mentioned in the aforesaid judgment may also not be lost sight of while disposing of this appeal. We have already discussed the merits of the case above, therefore, notice of this application need not be given to the other party as this state of affairs has been reported in a judgment of the Honourable Lahore High Court and was reported to the concerned quarters, hence there cannot be any denial of the fact that such a situation was prevailing, hence for all the aforesaid reasons we accept this appeal, set aside the order under appeal and dismiss the Petition bearing No,4a(662) of 1996-L.
11. We have considered whether the matter be remanded to the learned Court of original jurisdiction but we have not found it feasible since even if the case is remanded for removing the defects in the proceedings, the petition is still hit by laches which cannot be cured even after the remand.