' ABDUL GHIAS NOUSHERWANI MEMBER).--- This appeal is directed against the judgment/order dated 28-2-2011 passed by 1st learned Labour Court, Balochistan, Quetta, in Case No,26 of 2010 wherein application under 46 of I.R.O. 2002 against the illegal termination of service of petitioner dated 28-8-1996 was dismissed. It will be worthwhile to mention here that in earlier the grievance application of applicant/appellant has been allowed by means of order dated 13-6-2007 but on the remand from this tribunal the said application has been dismissed.
2. The brief facts of the case are that the applicant/appellant was an ex-service man of Pakistan Army and was employed by the respondent bank as a Gun man and due to his efficient service he was promoted as Casher in the year 1985. According to the grievance application he started activities in the Lawful trade union and by way of election he remained as senior Joint Secretary in the said union which was also CBA in the Establishment of the bank. Further submitted that he submitted a charter of demand dated 12-6-1996 from which the bank being aggrieved and issued a charge-sheet to him on 27-9-1996 on the ground of misconduct under the UBL Staff Service Rules, 1981 for the allegations of will full and unauthorized absence. Against applicant/appellant filed a petition before NIRC Islamabad from where the said charge sheet was suspended by means of order dated 20-8-1996. The applicant/appellant further submitted that in view of amendment of section 2-A of Service Tribunals Act, 1973. During the pendency of the appeal before Federal Service Tribunal the honourable Supreme Court of Pakistan announced the judgment dated 27-6-2006 in view of this judgment the appeal were returned vide notices 8/7/2006 there after he filed grievance application before 1st Labour Court of Balochistan Quetta.
3. The learned counsel for appellant submitted that the respondent bank was annoyed due to union activities and issued him such baseless show-cause notice. He contended that such charge-sheet and other proceedings were suspended by NIRC on 20-8-1996 but he was dismissed from service on 22-8-1996. He referred a case of Syed Iqbal cashier of the same bank who remained absent for seven months but Federal Service Tribunal allowed his appeal and Honorable Supreme Court of Pakistan also confirmed the same. He strongly agitated that absence period has not been mentioned neither in show cause notice nor in so-called inquiry proceedings. The learned counsel concluded his argument that no proper inquiry was conduct and now the Appellant/Applicant reached the age of 75 years being a heart patient facing the court proceedings since 1996. On the other hand the learned counsel for respondent submitted that the applicant/appellant remained absence from duty without any plus able reasons and even after notice he did not join his duty further submitted that the case of respondent bank depend on documentary evidence. Mainly agitated that no grievance notice has been issued by applicant/appellant and the grievance application notice is time-barred.
4. Keeping in view the submissions made by the counsel of the parities and perusal of available record it will be beneficiary to examine the issues farmed by the court: and evidence led by the parities. In my humble view there are two moot questions for disposal of the appeal in hand---
(1) Whether the petition before learned Labour Court was not maintainable in view of preliminary objections A, B, C of rejoinder?
(2) Secondly whether the termination order dated 22-8-1996 is illegal? These two questions have been farmed in shape of Issues Nos.1 and 2 in earlier round by the court.
5. The learned counsel for respondent contended that no grievance notice has been issued to respondent in view of section 41 of BIRA and the grievance application is bared by time in support of his contention he relied upon the judgment of honourable Supreme Court of Pakistan reported in 2006 SCM R 783 and 2002 SCM R 1278. In view of section 41 of BIRA and above noted authorities grievance notice is mandatory provision to invoke the jurisdiction of learned court but in instant case position is different for the reasons after remand the learned Labour court in its judgment at page No,6 observed:--- "However apart from these observation as after remand of the case the parties have produced their evidence as mentioned here in before the Issues Nos.2 and 3 which relates to the production of the evidence have how to be decided afresh in the light of evidences produced by both the parities, as earlier 3 issues where farmed by this court and Issue No,1, which related to legal objection have already been decided in detail in this court earlier order 13-6-2007, hence is not required to be repeated whereas the remaining 2 Issues i,e, 2 and 3 are decided as under".
6. ,In earlier round Issue No,1 was whether the petition is not maintainable in view of preliminary legal objections A, B, C of the rejoinder and learned Labour court decided the same in following manner:--- "Respondent in his written reply to the grievance application have raised 3 preliminary legal objection as pointed "A" that the grievance application is barred by time, "B" that no grievance notice under section 46 of IRO, 2002 have been given to the respondent prior to filing the present grievance application and "C" that the respondent bank is a private institution and the petitioner does not fall within the definition of worker hence this court has no jurisdiction , in connection to legal objection "A" it is point out here the applicant with his grievance application have filed an applications for coadunation of delay, if any, which is allowed for the reasons that the case was abated by Federal Service Tribunal in the light of Supreme Court's judgment dated 27-6-2006 and for which the respondent have received the notice of Federal Service Tribunal of dated 8/7/2006 (copy enclosed with grievance application) where after the applicant have filed the under reference grievance application in this court, as it is a continuation judicial proceedings hence no delay have been caused otherwise. Also these legal objections have been un-rubetted from the side of respondent with regard to legal objection "B" that no grievance notice under 46 of IRO have been given to the respondent prior to filing the instant petition, the contention of application is that before filing grievance application he has sent a grievance notice to the respondent on 17-11-996 which was duly served to the respondent (a copy of which have been filed with grievance application) otherwise also this legal objection have gone unrebutted on the part of respondent. As far as the legal objection "C" of counsel that the respondent-bank is a private institution and the applicant does not fall within the definition of workman hence this court has no jurisdiction, it is an issue of mixed question of law and fact which has also gown un-rebutted on the part of respondent. In the light of instant judgment of honorable Supreme Court of Pakistan dated 27-6- 2006 now this court have jurisdiction to entertain his grievance application and respondent bank is included within the jurisdiction of this court."
7. As stated and reproduced the observation of learned Labour court on Issue No,1 in its judgment under appeal the above mentioned findings of earlier judgment have been confirmed and merged on judgment under appeal. It is very surprising against the findings of learned Labour court on Issue No,1 no appeal or cross objection has been filed by the respondent which attained its finality.
Therefore the above mentioned objection of respondent is not sustainable in eyes of law.
8. Coming on the point that whether the applicant/appellant was terminated illegally required to be considered in the light of documentary and oral evidence. Firstly charge-sheet dated 22-7-1996 annex-A reflects that no date/period of the absence of applicant/appellant is mentioned and on the basis of this charge-sheet dated 22-7-1996 an inquiry committee was constituted. A notice dated 2-6-1996 Exh.P/R-1 also did not mention the date and period of absence of applicant/appellant; similarly show-cause notice dated 25-6-1996, 18-7-1996 and charge-sheet dated 22-7-1996 and notice of domestic inquiry 30-7-1996 are silent about the absence period.
9. The above mentioned notices and proceedings of inquiry Exh.P/R-6 to Exh.P/R-12 have not been tendered by the representative of bank who was an inquiry member nor the same were written by him. It is very strange that above documents are photostats copy and unattested how the learned Labour court exhibited the same and did not discuss the evidently value of the photostats and unattested copies produced by a person who was neither a member nor writer of the same. The honorable Supreme Court of Pakistan in reported judgment PLD 2002 Supreme Court page 84 held:--- "Photocopy of documents, such documents cannot be taken into consideration merely by tendering document in evidence the same has no evidentially value unless its contents are proved according to the law"
10. Secondly no member of inquiry committee was produced before the learned Labour Court nor the original record of inquiry has been produced. It also observed that in inquiry proceedings neither the signature of applicant/appellant has been obtained in front of his answer nor at the bottom of inquiry proceedings.
11. Furthermore it reveals that against the show cause notice applicant/appellant approached NIRC and a suspension order dated 20-8-1996 was issued which has been mentioned in the proceedings dated 21-8-1996 Annx- 8-A as under:--- "The chairman asked from he Mr. Haidery whether he is mentally prepared to face the proceedings, he replied yes however he verbally reported the stay order granted by the court (NIRC) Islamabad (copy of which is not available in this regard)"
12. The suspension order granted by NIRC indicates that the same has been issued 20-8-1996 and proceedings of inquiry initiated on 21-8-1996. It was obligatory for the Inquiry Committee to adjourn the proceedings for the reasonable time for production of such suspension order.
13. Now taking into consideration the statement of representative of bank in examination in chief while tendering the unattested Photostat copy of documents, he stated, {{ URDU TEXT }}
14. before going to cross-examination, from above mentioned statement again the date/period of his absence has not been disclosed. Secondly according to representative of the bank the notices were issued in newspaper daily Jung and Meshraq dated 9-8-1996 but the applicant did not appear before the inquiry committee. It indicates that no inquiry IC was conducted or improper and one sided inquiry was conducted which is not according to law and natural justice.
15. Corning on the cross-examination of the representative of the bank RW-1 wherein he admitted:- {{ URDU TEXT }}
16. From above mentioned cross-examination it reveals that in spite of a long period of absence no action has been initiated against the applicant/appellant. Secondly another aspect of the case emerged that applicant/appellant received his salary from bank from 27-8-1996 till 20-9-2006.
This admission of the representative of bank confirmed that action taken against applicant/appellant due to submission of charter of demand and in this connection the representative of the bank admitted that the bank administration was unhappy with the applicant due to his union activities. The learned Labour Court has not taken in to consideration the above mentioned facts, circumstances and legal aspect to reach at a just and proper conclusion.
17. According to the counsel of appellant now the applicant/ appellant is a heart patient and reached at the age of 75 years admittedly unable to be reinstated in the service however he is entitled for back-benefits from the date where his salary was stop at age of retirement according to the United Bank Limited rules. This is the up shoot that appeal is partly accepted and the judgment under appeal dated 28-2-2011 is set aside with above mentioned modification. Let the parties to bear their own cost. A copy of this order along with original record of be sent to trial court for information and compliance. Case file after completion and compilation be consigned to record.