1. MD. NURUL ISLAM KHAN (CHAIRMAN). This is an application under section 25 (1) (b) of the East Pakistan Employment of Labour- (Standing Orders) Act, 1965, hereinafter referred to as the Act.
2. The case of the first party in short, is that he was work--ing as an Acting Head Cashier in the Azimgonj Branch of the National Bank of Pakistan. Orr account of some shortage in the cash, a criminal case being No. 363 of 1966 and a Money Suit being No. 3 of 1969 were instituted against him in the Sylhet Court. , He was put under suspension on 18-7-66: The second party ordered that he should get subsistence allowance to the extent of 1/4th of his substantive pay during the period of his suspension and also ordered that he should not leave the headquarters without the permission of the second party. The first party was not paid any subsistence allowance according to section 18 (2) of the Act till to-date. He submitted a grievance petition on this score and he received a reply from the Administrative Officer of the second party to the effect that he was not entitled to any benefit during the pendency of criminal proceeding. Being aggrieved and highly incon--venienced by his financial difficulties created by the second party he has now approached the Court with a prayer for directing the second party to reinstate him and for all other arrear and legal dues including his subsistence allowance as pro--vided under the. Act.
3. The second party entered into appearance and contested the case. It has been submitted by the second party that the case is not maintainable since the National Bank of Pakistan Ordinance, 1949 was a Central Legislation and that the Labour Court has no jurisdiction to entertain an application under section 25 of the Act since this is a Provincial Legislation and it cannot supersede the Central legislation. He has further raised a point that Article 131 of the late Constitution read with third Schedule.Items Nos. 9-A and 9-B the Provincial Government has no jurisdiction to fix terms and conditions of services of the workers of the National Bank- of Pakistan. The National Bank of Pakistan has framed its own service rules and conditions being empowered under section 32 of the National Bank of Pakistan Ordinance, 1949.
4. According to the service rules of the National Bank of Pakistan, the first party is entitled to 1/4 of his substantive pay as subsistence allowance and not more. He was ordered that amount at Azimgonj and was also directed not to leave the headquarters without permission. But he left the head- quarters without permission and did not take payment. Both criminal and civil proceedings are pending against him, and therefore his case cannot be disposed of in the pendency of these proceedings. Hence the delay for which the Bank is not responsible. The application is not maintainable on the above grounds and therefore it should be dismissed with costs.
5. Points for determination in the present case are-
(1) Whether the Court has jurisdiction to entertain this application?
(2) What relief, if any, is the first party entitled to?
6. FINDINGS AND DECISION Point No. l-A very interesting point has been raised by the second party regarding the maintainability and jurisdiction of this Court. It has been submitted by the learned Advocate of the second party that under Article 131 of the late Constitution of 1962 read with Third Schedule, Items Nos. 9-A and 9-B, the Central Government was empowered to legislate regarding the Banks and the existing National Bank of Pakistan Ordinance of 1949 was therefore, standing Central Act. The province has no jurisdiction to interfere wish Banking affairs under the Third Schedule of the Constitution. Under section 32 of the National Bank of Pakistan Ordinance the Central Court was empowered to frame rules with the approval of the Central Government and they framed rules regarding the service conditions and terms of the workers and this has been a part and parcel of the National Bank of Pakistan Ordinance. In view of this position the National Bank of Pakistan Ordinance which is a Special Act, its provisions cannot be superseded by the Standing Orders Act and therefore, this Court has no jurisdiction to adjudicate the matter. As against this, the learned Advocate for the first party submitted that the Preamble of the Act would show that under the Constitution the Provincial Legislature was empowered even to repeal a Central Legislation such as the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 not to speak of legislating afresh within its jurisdiction as under Article 132 of the late Constitution the Provincial Legislature was empowered to legislate on any matter other than described in the Third Schedule.
7. It was further pointed out from the Act that in the proviso to section 1 of Vie Act it was clearly stated that the Act shall not be applicable to any shop or commercial l or industrial establishment owned and directly managed by the Provincial or Central Government. In the present case, the Bank is not, directly managed by the Central Government and as such, as subsection (1) of section 2 says that the Act shall extend to the whole of East Pakistan and as commercial establish--ment as defined in section 2 (d) embrances Bank too, the Act is competent enough to extend its jurisdiction to the worker of the National Bank of Pakistan, The Act has further laid down in section 3 that any commercial establishment may have its own rules regulating employment of workers, but no such rule shall be less favourable to any worker than the provision of this Act. The second party allows only 1/4 of the sub-stantive pay of a worker during his suspension period whereas even .the Central Government has framed rules for allowin 1/3rd of the substantive pay of an employee as subsistence allowance during suspension period. These facts are admitted by the parties and there is no dispute on this score--- It has been argued that the National Bank of Pakistan Ordinance is inconsistent with the provisions of the Act and sc it will be overruled by the provisions of the Act. The provision of p the Act will prevail over the provision as laid down by the National Bank of Pakistan Ordinance.th th As for the argument that the National Bank of Pakistan Ordinance being a Central Ordinance it will prevail over the Provincial Act, it has been pointed out by the learned Advo--cate of the first party that Article 225, sub-article (7) says that "existing laws" means all laws (including Ordinances, Orders-in-Council. Orders, Rules, Bye-laws, Regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of, law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the commencing day. His sub- ' mission is that the civil Court being the highest judicial body in the country has interpreted this article in connection with the case of Abul Ala Moududi v. Government of West Pakistan (1) and the Hon---ble Court has held that ail previous legislation before the coming into force of the Constitution are to b regarded as existing laws and in a case where a law is enacted by the Assembly under the Constitution, if the provision of the latter Act is found inconsistent with the provision of the law, that inconsistent portion of the existing law will regarded as have been repealed by the implication. In the present case also it has been argued that the National Bank of Pakistan Ordinance is an existing law and in so far as its provision is inconsistent with the provision of the Act that relevant portion of the National Bank of Pakistan Ordinance shall be treated and implied as repealed. Taking this view, it has been then argued that the National Bank of Pakistan Ordinance and rules in so far it relate to and come in clash with the provisions of the Act are impliedly repealed and therefore not applicable and at present whereas the Act being a law enacted under the force of the Constitution it shall have superiority over the existing law as explained here. On consideration of this point we find that the argument of the earned Advocate of the first party has got considerable force and we feel inclined to accept his argument on the point.
8. We therefore, hold that the Act has applicability in case of the workers of the National Bank of Pakistan Zoo and this Court has jurisdiction to entertain the application of the D Workers of the National Bank of Pakistan The next point is that the Acting Cashier was a worker and that this point was admitted by the parties. If the pro--visions of the Act apply to a worker of the National Bank of Pakistan, he is entitled to receive subsistence allowance equivalent to half of his average was including dearness allowance, if any. Therefore, I find that the first party who has been put to hardship during the period of 4 years' sus--pension should be paid subsistance allowance equivalent to half of his average wages including Dearness Allowance, if any.
9. It is accordingly ordered that the first party be given subsistence allowance equivalent to half of his average wages including Dearness Allowance, if any, and - that the second party be directed to calculator the entire amount up-to-date and deposit the same in Court to the credit of the first party within thirty days from the date of passing this order.
10. Members on consultation agreed with my above decision.