' SHUJAAT ALI KHAN, J. -- By means of this petition, under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed wires of judgments, dated 27.10.2001 and 29.04.2002, passed by the Presiding Officer, Punjab Labour Court No, 9, Multan (respondent No, 6) and the Chairman Punjab Labour Appellate Tribunal., Lahore (respondent No, 1), respectively.
2. Unnecessary details apart, the facts, as spelt out in the instant petition, are that the petitioner joined Muslim Commercial Bank (the Bank) as Cashier, in the year 1972, and was posted at Chowk Bahadur Pur Branch, District Rahim Yar Khan. He was served with Charge-Sheet, dated 13.09.1975, and upon finalization of the proceedings he was removed from service on 18.11.1975. Aggrieved by his removal from service, the petitioner filed a Grievance Petition, under Section 25-A of the Industrial Relations Ordinance, 1969 (the Ordinance 1969), before respondent No, 6 which was allowed through judgment, dated 18.02.1976, and the petitioner was re-instated in service with back benefits. Being dissatisfied by the verdict of respondent No, 6, the Bank filed an appeal before respondent No, 1, during pendency whereof the Bank served the petitioner with fresh Charge-Sheet, dated 01.04 1976, and consequent upon the findings of the Inquiry Officer the Controller of the Bank dismissed the petitioner from service, through order dated 25.05.1976, which was assailed by the petitioner by preferring departmental appeals. As the appeals filed by the petitioner were not responded to, the petitioner served the Bank with Grievance Notice, dated 26.04.1997, which was responded by the Bank authorities in negative, through communication dated 08.05.1997, with the assertion that the appeal filed by the petitioner was time-barred. Thereafter, the petitioner filed Grievance Petition, before respondent No, 6, in terms of Section 25-A, ibid, which was contested by the Bank. Finally, respondent No, 6, vide judgment, dated 27.10.2001, accepted the Grievance Petition of the petitioner to the extent of his reinstatement in service whereas his request for grant of back benefits was turned down. Aggrieved by the judgment passed by respondent No, 6, both the parties filed independent appeals before respondent No, 1, who, while dismissing the appeal filed by the petitioner, accepted that of the Bank, through judgment dated 29.04,2002, Aggrieved by the acceptance of appeal filed by the Bank and dismissal of his appeal, the petitioner has filed the instant petition.
3. The legal submissions, put forwarded by learned counsel for the petitioner, can be summed up in the words that as order regarding dismissal of the petitioner from service was, passed by an incompetent person, the entire superstructure raised thereon was a nullity In the eye of law; that according to Appendix-VI to the Muslim Commercial Bank Limited Staff Service Rules, 1961 (the Rules), the competent authority In the matter of the petitioner was the General Manager of the Bank whereas order regarding dismissal of the petitioner from service was passed by the Controller of the Bank; that as the Inquiry Officer was not produced before respondent No, 6, during the course of evidence, the contents of Inquiry Report remained unproved; that the Bank only produced Syed Muhammad Sajid, RW-1, whose statement could be considered mere secondary evidence; that findings of the Inquiry Officer being ambiguous inasmuch as liability of the petitioner was not determined in clear cut words, no adverse action could be taken against him; that under the garb of de novo inquiry the Bank introduced entirely fresh Charge-Sheet which was not permissible under the law; that under Section 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the Ordinance 1968) the Bank was bound to issue Charge-Sheet within one month from the date of omission or commission, if any, on the part of the petitioner; that while submitting reply to the Grievance Petition filed by the petitioner the Bank instead of adopting clear cut stance contented with evasive denial; that no limitation runs against a void order and that when the Bank failed to establish that the petitioner remained gainfully employed elsewhere during the period of his ouster from service, respondent No, 6, could not turn down his request for grant of back benefits. In support of his contentions, learned counsel has relied upon the cases reported as Province of Sindh and others v. Ghulam Fareed and others (2014 SCMR 1189), Mir Ajab Khan and another v. Deputy Postmaster General, SRP, Dere Ismail Khan and others (2013 SCMR 1053), Chairman, State Life Insurance Corporation of Pakistan, Karachi and others v, Siddiq Akber (2013 SCMR 752), Seed Salem Armed v, Chief Justice of Sindh High Court, Karachi through its Registrar (NLR 2008 Service 117), Evacuee Trust Property Board and others v, Mst.
Sakina Bibi and others (2007 SCMR 262), Sher Muhammad Shehzad and 22 others v, District Health Officer and another (2007 PLC (CA.) 184), Government of Sindh through Advocate General Sindh, Karachi v. Masood Hussain and others (2002 PLC (C.S.) 752), Allah Yar v. General Manager, Railways Headquarters, Lahore and another (2001 SCMR 256), Shah Muhammad Chaudhry v. Federation Service Tribunal and others (2001 SCMR 300), Land Acquisition Collector, Nowshera and others v, Sarfraz Khan and others (PLD 2001 SC 514), Maqbool Ahmed v. Shaikh Muhammad Anwar and others (1999 SCMR 935), Ch. Ghulam Sarwar v. Secretary, Ministry of Education, Government of Pakistan, Islamabad and others (1998 SCMR 1375), Hurnayun lqbal Shami, Section Officer Ministry of Industries and Production, Islamabad v. Prime Minister of Pakistan (1998 SCMR 1175), Muhammad Jan Marwat, DFO, Now Chief Planning Officer Forestry, Fishries & Wildlife, Peshawar and another v.
Nazir Muhammad and 17 others (PLJ 1997 SC 451), Muslim Commercial Bank Ltd. v. Mahmood Ahmad Butt etc. (PLJ 1997 SC 967), Lal Khan v. Punjab Labour Appellate Tribunal and another (1995 SCMR 1758), Forbes Campbell & Company v. Habib-ur-Rehman and others (1982 PSC 625), Ali Muhammad v. Hussain Bakhsh and others (PLO 1976 SC 37), Divisional Superintendent, P.W.R.
Karachi v. Bashir Ahmad (PLO 1973 SC 589), P.A. Khan .v. The Govt. Of Pakistan (PLD 1964 SC 520), Pakistan v. Sheikh Abdul Hamid (PLO 1961 SC 105), Messrs Mitcheers Fruit Farms Limited through Manager v. Mehboob All and another (2007 PLC 429), M/s Emmay Zed Publications (Pvt.) Ltd.
Through Secretary v. Abdul Rahman Baloch (NLR 2005' Labour 80), Muhib All v. Chairman, State Life Insurance Corporation of Pakistan and 6 others (2003 PLC 316), Ghulam Nabi v, Chairman, Lahore Development Authority, LDA Plaza, Lahore and 3 others (2002 PLC (C.S.) 836), Sheikh Sajjad Hussain v. Managing Director (T & G) WAPDA, Lahore and another (1998 SCMR 1565), Abdul Rashid v.
Chairman, Labour Appellate Tribunal N.W.F.P. Peshawar and 2 others (1997 PLC 34), Phullan (deceased) through his Legal Heirs and others v. Muhammad Sarvvar and 2 others (1992 CLC 1975), Habib Bank Limited etc. v. Atha Muhammad (2014 TD (Labour) 6), Petitioner v. National Bank of Pakistan (NLR 1991 Service 166), National Bank of Pakistan v. The Sindh Labour Appellate Tribunal,'
'Karachi etc. (NLR 1991 Labour 30) and Muhammad Arshad v.I &P. Coates Pakistan Ltd. And others (PLJ 1977 Karachi 98),
4. Conversely, learned counsel representing the Bank, while defending the impugned judgment, passed by respondent No, 1, submits that as respondent No, 6, while ordering reinstatement of the petitioner in service, permitted the Bank to hold de novo proceedings against him, no exception can be taken against the findings of the departmental authorities mere on the ground that the petitioner was served with a fresh Charge-Sheet during the course of de novo proceedings; that the petitioner was dismissed from service in the year 1976 whereas he served the President of the Bank with Grievance Notice in the year 1997, thus, the Grievance Notice was hopelessly time- barred; that the petitioner was bound to serve Grievance Notice upon the competent authority but he served the same upon the President of the Bank which otherwise was inconsequential; that departmental appeal/representation cannot be considered as substitute of the Grievance Notice; that the point regarding incompetency of the Controller of the Bank to dismiss the petitioner from service was not agitated by the petitioner before the fora below, therefore, he is debarred to, raise said plea before this Court; that as a matter of fact order regarding dismissal of the petitioner was passed with implied consent of the competent authority, therefore, it carries due weight; that instant petition is hit by the principle of (aches; that the points raised by the petitioner in the instant petition have fully been discussed by respondent No 1, thus, the same deserves straightaway dismissal; that findings of facts recorded by the fora below cannot be upset by this Court in exercise of its Constitutional jurisdiction and that the petitioner neither in his pleadings nor while appearing in the witness-box has taken the plea that he filed appeals before the appellate authority which remained un-responsive, thus, he cannot be 'given any premium on that account.
In support of his contentions, leaned counsel has relied upon the cases reported as Almas Ahmad Fiaz v. Secretary Government of the Punjab, Housing and Physical Planning Development, Lahore and another (2006 SCMR 783), Izzat Baig Awan v. Habib Bank Ltd. (2004 SCMR 98), Khushal Khan v.
Muslim Commercial Bank Ltd. And others (2002 SCMR 943), Water and Power Development Authority through Chairman, WAPDA House, Lahore and 2 others v. Khawaja Abdul Waheed (2002 SCMR 753), Lai Khan v, Punjab Labour Appellate Tribunal and another (1995 SCMR 1758), Muslim Commercial Bank Limited' Karachi through Attorneys v. Abdul Majeed Mirza (2004 PLC 182) and judgment dated 09,06,2008, rendered by the apex Court of the country in Civil Appeal No, 1839 of 2005 titled Muhammad Nawaz Bhattl v. President, Muslim Commercial Bank Limited, Head Office, I.I.
Chundrl Garh Road, Karachi and others.
5. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that as the petitioner had been filing appeals against his dismissal before the departmental authorities, ranging from the years 1976 to 1997, which were brought on record during the course of evidence without any objection on behalf of the respondents, thus, there was no question of limitation; that when the order otherwise is coram non judice the question of limitation does not arise; that the question of /aches cannot be equated with the period of limitation and that as the petitioner filed instant petition within four months from the receipt of judgment passed by respondent No, 1 same is not hit by the principle of /aches in stricto-senso,
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.
7. Firstly, taking up the question regarding limitation in filing the Grievance Petition by the petitioner before respondent No, 6, I am of the view that in terms of Section 25-A (2) of the Ordinance, 1969, a worker is bound to serve the employer with a Grievance Notice prior to approaching the relevant forum, Further, under Section 25-A (4) of the Ordinance, 1969, a workman was given option either to challenge the matter before the Labour Court on expiry of time specified for decision of the grievance by the employer in terms of Section 25-A (2) & (3) of the Ordinance 1969, or he could challenge the final order of the employer/competent authority on the Grievance Notice served by him, insofar as the case In hand is concerned, I have noted that the documents produced by the petitioner as Exh,P-10 to 21 shows that right after his dismissal from service, the petitioner had been filing appeals/ representations/applications before the departmental authorities for his re- instatement which remained unresponded and lastly he served the President of the Bank with Grievance Notice with the prayer that he be re-Instated In service. While replying to the said notice, the Bank authorities took the stance that he could not be re-Instated as his request In that regard was 'hopelessly time-barred. Upon receipt or reply from the Bank authorities, the petitioner filed a Grievence Petition before respondent No, 6 within the prescribed period of in this scenario, the observation of respondent No, 1, coupled with the contention of learned counsel representing the respondents, to the effect that the Grievance Petition filed by the petitioner was barred by the law of limitation, has no worth at all.
8. A perusal of the documents annexed with this petition shows that while accepting the Grievance Petition, in the first round of litigation, respondent No 6 allowed the Bank authorities to hold de novo inquiry against the petitioner, However, during the course of de novo proceedings, the competent authority could not be permitted to introduce entirely different set of allegations by way of serving a fresh Charge-Sheet. In this regard, a reference can safely be made to the case of Allah Yar (Supra) wherein the apex Court of the country, while determining the fate of second charge-sheet has inter-alia observed as under:- "The second charge-sheet was given subsequently. What was the necessity of justification for issuance of two charge-sheets with, such a wide gap in the , prevalent circumstances or me, case could not be explained."
9. The conduct of Bank authorities towards issuance of fresh charge-sheet under the garb of de novo proceedings has no legs to stand. If the Bank authorities were of the view that conduct of the petitioner was amenable to any disciplinary proceedings they could proceed against him independently without taking aid from the findings of respondent No 6. A cursory glance over the subsequent charge-sheet shows that in addition to the allegation of misappropriation of Rs, 5,000/-, other allegations were also Included therein, Had the said charge-sheet been issued pursuant to the observation of respondent No 6, regarding initiation of de novo proceedings against the petitioner, same could only be issued to the extent -of the allegations which were basis of the dismissal of the petitioner in the first round of litigation. The inconsistent attitude of the Bank authorities is manifest from the fact that on the one hand they adopted the plea that they issued subsequent Show-Cause Notice pursuant to the observations of respondent No, 6 and on the other introduced entirely different set of allegations.
10. Learned counsel for the petitioner has referred to rule 7(c) read with rule 22 of the Rules. A perusal of rule 7(c) ibid shows that the Cashier falls in Category III of the members of the clerical staff. Further, rule 22 ibid postulates that an employee can be dismissed by the competent authority as defined in Appendix-VC to the Rules. A bird's eye view of Appendix-VI leaves no ambiguity that the competent authority for the purpose of rule 22 ibid is the General Manager or any officer authorized by the General Manager in this behalf. Faced with the situation, though learned counsel representing the respondents has attempted to argue that as the order regarding dismissal of the petitioner was passed with the implied permission of the competent authority, no exception can be taken against the same, In this regard, I do not find myself in agreement with learned counsel for the respondents for the reason that there is nothing on record to show that either the Controller of the Bank was competent enough to proceed against the petitioner or he was authorized by the competent authority in that regard. In absence of any power the order passed by the Controller of the Bank can only be dubbed as coram non judice. Reliance in this regard can be placed on the case reported as Province of Sindh and others v. Ghulam Famed and others (2015 PLC (C.S.) 151).
11. Now coming to contents of Inquiry Report, I have observed -that firstly due to non-production of Inquiry Officer during the course of evidence the same remains unproved. The reasons advanced by the Bank authorities and relied upon by respondent No, 1, while accepting the appeal filed by the Bank authorities, that due to retirement of the Inquiry Officer it was not possible for the Bank to produce him in witness box, does not appeal to reason. It is not believable that the departmental authorities were not aware about the antecedents of the Inquiry Officer even after his retirement as he had been receiving monthly pension in routine and if the Bank authorities were so keen to bring home the guilt against the petitioner, they could easily manage the production of said Inquiry Officer in the witness box. Since the explanation put forwarded by the Bank authorities for non- production of the ,Inquiry Officer during the course of evidence does not appeal to reason, an adverse inference goes against them that perhaps the Inquiry Officer was not ready to come forward to support the case of the Bank.
' Even, otherwise, respondent No, 1, while deciding the matter himself has admitted that though the Inquiry Officer was not produced in evidence, but the contents of the Inquiry Report stood proved through the statement of RW-1 in the shape of secondary evidence. It is well-established by now that secondary evidence can only be permitted when the original is not available or the same cannot be produced due to unavoidable circumstances. There is nothing on record to show that the Bank authorities sought any permission from the Court to produce secondary evidence.
Secondary evidence produced without seeking permission from the Court has no evidentiary value as held by this Court in the case of Mst. Akbar Jan through L.Rs and 9 others v. Mst. Kalsoom Bibi and 6 others (2015 CLC 549).
12. A perusal of the judgment passed by respondent No, 1 shows that he instead of discussing the merits of the case utilized his energies to comment upon the conduct of respondent No, 6, unnecessarily. While setting aside the judgment passed by respondent No, 6, respondent No, 1, at more than one place, observed that respondent No,6 was all out to favour the petitioner. While adversely commenting upon the approach of respondent No, 6, respondent No 1 left no stone unturned to favour the Bank. To exemplify the said fact, a reference can be made to Paragraph No, 11 of the judgment passed by respondent No, 1 wherein while dealing with the competency of the Controller of the Bank to dismiss the services of the petitioner, he instead of replying the said query through cogent reasoning, took a U-turn and mingled up the said issue with the question of limitation in filing the Grievance Petition by the petitioner after 21 years of his dismissal from service, Had respondent No, 1 decided the matter fairly, while determining the competency of the Controller of the Bank to proceed against the petitioner, perhaps the result would have been entirely different.
If the Controller of the Bank was not competent enough to proceed against the petitioner, the subsequent superstructure raised thereon carries no. Weight.
13. A cursory glance over the judgment passed by respondent No, 1 shows that he has put much emphasis on the fact that the subsequent charge-sheet served against the petitioner was not time-barred whereas the controversy between the parties was confined to the fact as to whether under the garb of de novo proceedings a fresh charge-sheet could be issued against the petitioner or not. The said question also remained un-responded by respondent No, 1 seemingly for the reason that after finding himself in a position of lurch, while supporting the Bank, he opted to avoid such query while intermingling with rest of the Issues.
14. With a view to meet with the plea of the petitioner that the order regarding dismissal of the petitioner was passed by an incompetent person, respondent No, 1 has observed that the said order was passed with consent of the competent authority and it was only conveyed through the Controller of the Bank. A look over the dismissal order of the petitioner shows that the Controller of the Bank has not conveyed any order passed by the competent authority rather he himself dismissed the petitioner from service. In this scenario, the observations of respondent No, 1, being contrary to the record, cannot be blessed with stamp of authenticity rather deserves to be brushed aside.
15. It is important to observe here that neither the Bank authorities took the plea before the fora below that the appeals filed by the petitioner against dismissal of his service were not recevied or the same were decided by the appellate authority. Moreover, not a single word has been uttered by the learned counsel representing the Bank in that regard. In this, backdrop, the findings of respondent No, 1, contained in Paragraph No, 15 of the judgment, are nothing but result of some misconception. There is nobody denying the fact that the appeal is always considered continuation of original proceedings and the appellate authority is bound to decide the matter independently, without being influenced by any findings of the forum below but the contents of the impugned judgment speaks otherwise.
16. Though it has been decided by this time that no limitation runs against a void order but respondent No, 1 attempted to put aside the law laid down by the apex Court of the country in that regard just to hold that despite the fact that the order of dismissal of the petitioner was a void one even then he was bound to challenge the same within stipulated time frame. While holding so, respondent No, 1 has not uttered even a word about filing of appeals by the petitioner against dismissal of his service and their non-decision by the appellate authority for the reasons best known to him. The august Supreme Court of Pakistan in the matter of Province of Sindh and others (Supra) has discussed the question of limitation against void order inter alia with the following observations:--- "10.....Whereas in the case in hand as noticed in the preceding para the termination orders having been issued by an officer not competent in law, therefore, such orders being void, would not attract the bar of limitation."
17. On the one hand, respondent No, 1 has observed that as the point regarding incompetency of the Controller of the Bank to dismiss the petitioner from service was not taken before the respondent No, 6 but on the other he tried to justify the same with an illusionary approach. At the cost of repetition, it is observed that when the appellate proceedings were continuation of original proceedings, the points raised by the petitioner were to be dealt with by respondent No, 1 without being influenced by any side. Even otherwise, legal objection can be taken at any stage of the proceedings irrespective of the fact as to whether the same was agitated before the forum below or not. Reliance in this regard is placed on the case reported as Divisional Forest Officer, Larkana and 3 others v. Ghulam Haider and 8 others (PLD 2007 Karachi 392) wherein it has inter-alia been observed that legal objection going to roots of the case can be taken at any stage. Despite repeated queries, learned counsel representing the Bank has miserably failed to refer to any document tending to show that either the Controller of the Bank was competent enough to proceed against the petitioner or he was delegated in this regard viz, the General Manager of the Bank rather he is of the view that as the General Manager of the Bank has to perform multifarious duties, it is not possible for him to proceed against every subordinate himself. If the plea raised by the learned counsel for the Bank is taken as correct, even then there was nobody stopping the General Manager of the Bank to authorize anybody else in that regard while exercising option provided under Appendix-VI (supra). In absence of express authorization in favour of an officer, the order passed by the latter cannot be dubbed as legal.
18. Now coming to the plea of the petitioner for grant of back benefits, I have noted that though the petitioner in the prayer clause of his Grievance Petition has sought for his reinstatement in service with back benefits but the said plea remained unproved as during the course of his testimony he did not utter even a word about the fact that he was entitled for back benefits for the reason that during the period of his ouster from service, he was not gainfully employed elsewhere. In the case of Hakim-uc/-Din through L.Rs, and others v. Faiz ,Bakhsh and others (2007 SCMR 870) the apex Court of the country has held that when the pleadings of the parties remained unproved through verbal/documentary evidence the same cannot be read in evidence. It was obligatory upon the Bank to establish that petitioner was not entitled for back benefits as he remained gainfully employed elsewhere only when the petitioner asserted so while appearing in the witness box. In this scenario, I have no second thought but to hold that respondent No, 6 rightly refused to grant back benefits to the petitioner.
19. Now taking up the point of laches, agitated by learned counsel for the respondents, I have noted that the instant petition was filed on 15.08.2002 challenging the vires of judgment, dated 29.4.2002 passed by respondent No 1. The apex Court of the country on various occasions has held that though no period of limitation has been provided to file a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, but an aggrieved person is bound to approach the Court within reasonable time and if his matter is hit by the principle of ladies same deserves to be dismissed on that score alone. The reasonable time has been determined as six months in the cases reported as Muhammad Azam Malik v. Pakistan Election Commission "Employees Cooperative Housing Society Limited Lahore (2012 CLC 1138), Dr. Ljaz Ali v. Mst. Gul Rashida and another (1997 MLD 1272), Mohabbat Ali v. Province of Punjab and others (1995 PLC 667) and ljaz Ahmad and 2 others v. The Government of Punjab (1990 PLC (C.S.) 697). As the instant petition, was-filed within six months from the date of passing of impugned judgment by respondent No, 1, the same cannot be dismissed on account laches.
20. A perusal of the Rules shows that under rule 4(a) it has been-declared that any existing rule or rules made subsequently or amendments thereto shall not be less favourable than the minimum requirements laid down in that behalf in the Ordinance 1968 meaning thereby that the provisions of the Ordinance, 1968 are applicable in respect of terms & conditions of the employees of the Bank.
According to Section 15(4) of the Ordinance, 1968, an employer can proceed against a workman within one month of the misconduct or within one month of the misconduct having come to knowledge of employer. The said point has further been elaborated by a learned Division Bench of the Peshawar High Court in the case reported as Abdul Rashid v. Chairman, Labour .Appellate Tribunal, -N. W. F. P., Peshawar and 2 others (1997 PLC 34). Insofar as the case in hand is concerned, a perusal of second Charge-sheet, dated 01.04.1976, shows that charge at Serial No, 1 pertains to the alleged misappropriation of amount by the petitioner on 13.09.1975, In the presence of such undisputed facts, the second charge-sheet, dated 01.04.1976, being violative of the mandatory provisions of Section 15(4), ibid was not sustainable.
21. It is well-entrenched by now that penalty against an employee should commensurate with the gravity of allegation. If for the sake of academic discussion it is presumed that the petitioner was responsible for missing of Rs, 5,000/-, perhaps the penalty of dismissal from service was not justified especially in the light of the fact that order regarding his dismissal was passed, by an incompetent person. Further, when the Charge-Sheet was served upon the petitioner beyond the period of one month the Subsequent superstructure raised thereon cannot be allowed to bold the field.
22. It is important to observe over here that under rule, 45 of the Rules right of appeal/application has been provided to an aggrieved person. Under rule 48 the authority has been empowered to withhold the said appeal on the ground that the same does not fulfill the criteria laid down under rule 47. If the authority exercises his power to withhold the appeal of an aggrieved person it is bound to inform the said fact to the appellant in terms of rule 49. Though learned counsel for the respondents has argued that as, the appeals were addressed to the President of the Bank, therefore, the same were inconsequential but he has not uttered even a word that the same were ,withheld under rule 48 ibid. Moreover, if the President of the Bank was of the view that the appeal/representation/application of the petitioner was not competent before him, he could easily convey the said fact to the petitioner enabling him to move the forum concerned for redressal of his grievance.
' Considering from another angle on the one hand learned counsel for the respondents has argued that the petitioner served the Grievance Notice upon an irrelevant person but on the other the request of the petitioner in terms of Grievance Notice was turned down on the ground that the appeal filed by him in that regard was hopelessly time-barred. If the Grievance Notice was not competent before the President of the Bank, the same could be responded accordingly but having not done so, the respondents acquiesced with the maintainability of the Grievance Notice before the President of the Bank.
23. Insofar as the case-law cited by learned counsel for the respondents is concerned, suffice it to observe that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Almas Ahmad Flaz (Supra) the apex Court of the country has held that as the petitioner in the said case failed to serve the Grievance Notice upon the employer within the prescribed period even, after dismissal of his Intra-Court Appear by this Court, his Grievance Petition before the Labour Court was barred by law of limitation whereas in the case in hand the petitioner has been pursuing his matter with promptitude firstly before the' departmental authorities and thereafter before the fora below. As far as case of Izzat Baig Awan (Supra) is concerned, the Hon'ble Supreme Court has held that absence from duty cannot be treated lightly whereas in the case under discussion the Bank authorities drew adverse inference against the petitioner on the premises that he after issuance of direction by respondent No, 6 failed to join duties within four days. If the petitioner failed to join the duty as per observation of respondent No, 6, at the most the respondents could refuse him to join at some subsequent stage but in no way could issue a Charge-sheet against him on the said score. Coming to the case of Water and Power Development Authority through Chairman, WAPDA House, Lahore and 2 others (Supra) I have observed that the apex Court of the country has held that When-- -the charge- of corruption/misappropriation was established against the employee, the competent authority could only decide as to whether he was to be retained in service or not, whereas in the case in hand when the proceedings were initiated against the petitioner by an incompetent person the said case is of no help to the respondents. In the case of La! .Khan (Supra) the apex Court of the country .Resolved that it is not necessary for the employer to, pass penal order against any subordinate by himself but in the case in hand when the rules have mandated that it was the prerogative of the General Manager of the Bank to proceed against any subordinate authorize anybody else in this behalf, the said case is not applicable. So far as the case of Muslim Commercial Bank Limited Karachi through Attorneys (Supra), is concerned, the same having been passed by the Labour Appellate Tribunal has no binding force upon this Court, thus, have no persuasive value. 'Insofar as judgment, dated 09.06.2008, rendered by the apex Court of the country in Civil Appeal No, 1639 of 2005 (Supra), is concerned, I am of the view that with all humbleness to the verdict of the apex Court of the country, the appellant in the said case was knocked out on the ground that as he did not fall within the category of workman his Grievance Petition before the Labour Court was not competent whereas in the case in hand the petitioner being admittedly cashier neither falls within the category of employer or supervisor, thus, proceedings before respondent No, 6 were fully competent.
24. For what has been discussed above, I have no hesitation to hold the Grievance Petition filed by the petitioner was within time and was rightly accepted by respondent No, 6, whereas he is not entitled to back benefits. Consequently, instant petition is partially accepted and the impugned judgment passed by respondent No, 1 is set aside. As a result, the judgment passed by respondent No, 6 shall hold the field. There shall be no order as to costs.