Tersely, the facts, as gleaned out from this petition, are that while serving as Assistant in the United Bank Limited (the Bank), respondent No.3 filed a Grievance Petition, before Punjab Labour Court No.5, Sargodha (the Labour Court) praying for grant of two increments on account of improving qualification, in terms of the United Bank Limited (Staff) Service Rules, 1999 (the Rules, 1999). The Grievance Petition filed by respondent No.3 was accepted by the Labour Court through order, dated 31.03.2011, against which the Bank authorities filed an appeal but without any success as the same was dismissed by the Punjab Labour Appellate Tribunal, Lahore (PLAT) through judgment, dated 11.09.2012; hence this petition.
2. Learned counsel for the Bank submits that while rendering the impugned decisions both the fora below failed to consider that after enforcement of Human Resource Policy, 2008 (the Policy, 2008), the Rules, 1999 were repealed, hence, no order could be passed in favour of respondent No.3; that since the Grievance Notice was served by respondent No.3 upon the employer-Bank beyond the prescribed period of limitation, no order could be passed in his favour; that since Industrial Relations Ordinance, 2011 (IRO, 2011) and the Industrial Relations Act, 2012 (IRA, 2012) were promulgated during pendency of proceedings before PLAT the jurisdiction of said forum was ousted for the reason that the Bank, being trans-provincial establishment, the competence to adjudicate upon the issue rested with NIRC, thus, the impugned orders being coram-non-judice cannot sustain. Relies on Pakistan Telecommunication Company Ltd. v. Member NIRC etc. (2014 SCMR 535).
3. Respondent No.3, while defending the impugned decisions rendered by the labour fora, submits that since the petitioners do not fall within the category of "aggrieved person" instant petition on their behalf is not maintainable; that as the petitioners have already retired from service, the power of attorney tendered in their favour, being no more operative, instant petition cannot proceed any further; that the power of attorney appended with this petition could only be used for internal business of the Bank, thus, same could not be used to institute the present petition; that even despite repeal of the Rules, 1999, his case was governed under different heads of the Policy 2008, thus, no illegality was committed by the forums below; that the Bank, being a financial institution, no proceedings can be instituted on its behalf without resolution of its Board of Directors (BoDs) as mandated under Order XXIX rule 1 CPC; that since at the time of enforcement of the Policy, 2008, his case was pending before the Labour Court the said policy could not be used to knock him out; that since neither the Bank referred to the Policy, 2008, during proceedings before the Labour Court nor before PLAT it cannot be allowed to agitate the said point before this Court for the first time; that if the Bank was of the view that PLAT had no jurisdiction to adjudicate upon the appeal filed by it, it could conveniently get transfer the proceedings before the relevant forum but when it allowed PLAT to decide the appeal, it has no cheeks to challenge its jurisdiction in these proceedings; that he being not part of clerical staff of the Bank was not covered under the Policy, 2008, rather his matter was to be governed under other related heads which are in vogue even till date; that the grievance raised by him before the Labour Court, being financial in nature, no period of limitation was fixed for the purpose and that the original power of attorney singed in favour of the petitioners was never filed before the Court rather the petitioners have banked upon copy thereof, hence, instant petition deserves outright dismissal. Relies on Chairman, Pakistan Agricultural Research Council (PARC), Islamabad and another v. Dr. Abdul Rashid, Scientific Officer (2005 PLC (C.S.) 105), Dr. Muhammad Arslan former Vice Chancellor v. The Chancellor, Quaid-e-Azam University (2000 SCMR 181), Muhammad Masihuzzaman v. Federation of Pakistan through Secretary, Establish Division and another (PLD 1992 SC 825), Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others (1988 SCMR 1664), Khan Iftikhar Hussain Khan of Mamdot, represented by 6 heirs v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550), Messrs Javedan Cement Limited v. Director, S.I.T.E. (West) Directorate Sindh Employees Social Security Institution, Karachi and 2 others (2008 PLC 312), National Insurance Corporation and others v. Pakistan National Shipping Corporation and others (2006 CLD 85) and M/s Sethi Straw Board Mills Ltd. v.
Punjab Labour Court No.3, Lyallpur and 2 others (1976 PLC 901).
4. While exercising his right of rebuttal, learned counsel representing the Bank submits that when power of attorney submitted by the petitioners was duly signed by the competent authority, their retirement cannot be used to abate the proceedings filed by the Bank. Adds that according to Order XXII rule 1 CPC even in the event of death of a party survivable claims do not abate and that the Rules, 1999 having been repealed through the Policy, 2008, same cannot be considered alive to the extent of respondent No.3.
5. 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.
6. Firstly taking up the objection raised by learned counsel for the petitioners that since during pendency of appeal before the PLAT, IRO, 2011 was promulgated, the PLAT was divested of the jurisdiction to adjudicate upon the appeal rather the same could be decided by the NIRC, I have noted that IRO, 2011 having been enacted to the extent of Islamabad Capital Territory (ICT), same could not unnecessarily be stretched to the rest of the country. As far as IRA, 2012 is concerned, suffice it to note that the same was promulgated, on 14.03.2012, meaning thereby that the said enactment came into existence during pendency of appeal of the petitioner-bank. According to section 57(2)(b) of IRA, 2012, NIRC may, on the application of a party, or of its own motion, withdraw from a Labour Court of Province any application, proceedings or appeal relating to unfair labour practice. Since the Bank itself allowed PLAT to decide the appeal as neither it filed any application for transfer of appeal to NIRC nor the same was withdrawn by NIRC on its own, the objection raised by its counsel in these proceedings carries no weight, thus, the same is accordingly spurned.
7. Now reverting to the merits of the case, I have noted that the B.A. Result Card was issued to respondent No.3, on 11.09.2008, whereas the Rules, 1999, were repealed on 02.09.2008 meaning thereby that the Rules, 1999, were no more alive on the date when result card was issued in favour of respondent No.3. A learned Division Bench of Sindh High Court in the case of Messrs International Finance Investment and Commerce Bank Limited v. Messrs United Bank Limited and 4 others (2000 CLC 1177) while dealing with the effect of repeal of a provision has inter-alia held as under:- "10. It may be specifically pointed out that the repeal of a law, or expiry of an Ordinance, does not revive what such a law had deleted or repealed. Analogy is on the reality that once one is killed, in whatever manner, the death of the killer shall not resuscitate him. Section 6 of the General Clauses Act, 1897 as well as Article 264 of the Constitution give the law on this point. Both are almost identical provisions. Under Article 89 of the Constitution, an Ordinance stands repealed on expiry of four months, and Article 264(a) of the Constitution provides that where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution, revive anything not in force or existing at the time at which the repeal takes effect."
8. It is of common knowledge that prior to any benefit merely on the basis of just participation in the examination. A cursory glance over the decision of the Labour Court shows that the said forum decided the issue, under discussion, in a slipshod manner. To fortify said fact reference can be made to the following portion from the decision of the Labour Court.
"7. Staff Service Rules, 1999 are Ex.P.5. Clause 59(1) speaks about the grant of two increments for obtaining a Bachelor degree. The contention of the petitioner has been supported by the Regional Operation Head, UBL Regional Headquarter, Sargodha which letter is Ex.P.6. Learned counsel for the respondents' bank has relied upon the staff circular No. 1675 dated 01.02.2010(Ex. R.1). The said Circular speaks about the grant of benefits to the employee on the basis of their evaluation of performance and conduct. While placing the said evidence in juxtaposition, I am of the view that the Circular dated 01.02.2010 has got no overriding effect on the rules of 1999. The rules as said above are still operational and having force that if any employee of the bank improves his qualification has been held entitled to the annual increments as is claimed by the petitioner. I am, therefore, convinced to accept the grievance petition which is accepted with costs. Order be implemented within one oath. Be consigned."
From above, it is crystal clear that question as to whether the Rules, 1999, were effective after 02.09.2008 was not responded in its true perspective. Further, the findings of PLAT that the Rules, 1999, stood repealed w.e.f. 02.09.2008 are sufficient to nullify the conclusion arrived at by the Labour Court.
9. It is important to observe over here that if relief is not covered under any policy/law same cannot be granted by this Court in exercise of its constitutional jurisdiction. Reliance in this regard is placed on the cases reported as Chairman, Federal Board of Revenue, Islamabad v. Atta Muhammad Mahsud and others (2017 PLC (C.S.) Note 58), Messrs Adamjee Insurance Company Ltd. through Managing Director and another (2010 CLD 280), Faysal Bank Limited v. Punjab Labour Court and another (2002 PLC 244) and Pakistan Insurance Corporation v. Haji Ghaffar through Legal Heirs and 3 others (1999 CLC 1190). Insofar as the case in hand is concerned, admittedly, the Rules, 1999 were repealed on 02.09.2008 and the same were not effective on 11.09.2008 when B.A.
Result Card was issued to respondent No.3 on the basis whereof he submitted application for grant of increments.
10. It is very strange to note that on the one hand, respondent No.3 took specific plea that the Policy, 2008, was inapplicable to his case but on the other, while relying on the same, he claimed benefits with the plea that since his matter fell within the category of pending matters, his right for grant of two advance increments could not be taken away on account of repeal of the Rules, 1999. Even otherwise, a perusal of the Policy, 2008 shows that under the heading of Applicable Laws, Rules and Regulations for only Clerical/Non-Clerical Staff (CS/NCS) it was inter alia clarified as under:- Besides existing UBL Staff Service Rules, the Clerical/Non-Clerical Staff are governed by the following Laws:-
1. Industrial Relations Ordinance, 2002.
2. The Industrial & Commercial Employment (Standing Orders) Ordinance-1968, as amended from time to time.
3. Banking Companies Ordinance-1962, as amended in 1997, as the Banking Companies
4. (sic) (Amendment) Act-1997.
5. Inordinate delay on part of the Inquiry Officer (IO) will require review by the Management and may lead to written warning to the IO."
None of the afore-quoted sub-clauses support claim of respondent No.3 for grant of two increments on the basis of the Rules, 1999 especially when the same were not in field on the date of submission of application by him.
11. It is well entrenched by now that appeal is considered continuation of the original proceedings and the forum of appeal is bound to decide the matter without being influenced by the findings given by a forum against whose decision appeal has been filed. Reliance in this regard can be placed on the cases of Khudad v. Syed Ghazanfar Ali Shah @ S. Inaam Hussain (2022 SCMR 933) and Mushtaq ul Aarifin v. Mumtaz Muhammad (2022 SCMR 55). A perusal of judgment of PLAT shows that instead of appreciating the controversy independently it toed the line of the Labour Court and decided the matter on the basis of suppositions. To fortify this fact reference can be made to the following portion from the judgment of PLAT:- "4. Record, comprising his degree and result transcript, discloses that the Respondent appeared in the B.A (General Group) examination in the autumn of 2007 and it is on 02.09.2008 that he was declared as having passed the examination held by the Allama Iqbal Open University, Islamabad.
The result card was issued to the Respondent on 11.09.2008 while the B.A. degree was issued on 14.05.2009. His claim for grant of the two annual increments is being denied on the ground that the Staff Service Rules, 1999, were not applicable as they had been replaced in 2008 by performance based criteria. In this regard, the Appellant Bank had relied upon its Circular No.1675 dated 01.02.2010 while defending the Respondent's claim for two annual increments before the learned Labour Court. In addition, the learned counsel for the Appellant Bank has placed on record UBL's Human Resource Policy Manual, issued by Mr. Ayaz H. Shamsi, being the Group Executive Human Resources of the Appellant Bank. This Manual, issued on 02.09.2008, states in the second last para of its Preface that "The PPPM of 1999 & the United Bank Ltd. (Staff) Service Rules, 1999 are hereby repealed." This clearly means that the Staff Service Rules, 1999, were in force and were duly recognized by the Appellant Bank until 2.9.2008. It also follows that the repeal of the Staff Service Rules, 1999, with effect from 02.09.2008, would not deny the advantage of Rule 59(1)(b) to an employee who had taken an examination prior to 02.09.2008 as at that time Rule 59(1)(b) was in force and had not been "repealed". It would be unfair and inequitable to deny an employee the benefit of Rule 59(1)(b) where he sat in the examination on the faith of Rule 59(1)(b) before its repeal but the result of the examination was declared at a date after the repeal. So far as the Respondent is concerned, he took the B.A. examination in the autumn of the year 2007 while the result of the examination was declared on 2.9.2008, the very day the Staff Service Rules, 1999, were repealed. Assuming the two to have been issued simultaneously, the right of the Respondent to receive two annual increments cannot be taken away as it had matured on 02.09.2009. In view of the UBL's Human Resource Policy Manual dated 02.09.2009, which was not submitted before the learned Labour Court, it is clear that the Staff Service Rules, 1999, were expressly repealed with effect from 02.09.2009. As such, there is no need to refer to Circular No.1675 dated 01.02.2010 which, as has been rightly held by the learned Labour Court, has no over-riding effect on the Staff Service Rules, 1999. However, the said Rules cannot be said to be operational after their repeal on 02.09.2009."
(emphasis provided)
From above, it is abundantly clear that PLAT admitted repeal of the Rules 1999 w.e.f. 02.09.2009 but despite that it dismissed the appeal of the Bank by observing that respondent No.3 was entitled to annual increments irrespective of repeal of the Rules, 1999 without caring for the fact that decision of Labour Court did not qualify the test of a judicial verdict.
12. Respondent No.3 repeatedly argued that since the persons, who filed this petition had already retired, instant petition cannot proceed. In this regard, I am of the view that petitioner No.1, being a bank falls within the definition of a juristic person, thus, instant petition cannot be held non- maintainable just on account of retirement of its President. Further an incumbent of a post retires but the designation still subsists. It is not the case of respondent No.3 that the Bank is not in existence at the moment, thus, proceedings on its behalf cannot be held non-maintainable.
13. Now taking up the plea of respondent No.3 that since the present petition was filed without the resolution by the Board of Directors of the Bank the same is untenable, I am of the view that since the officers, who filed this petition, were duly authorized by the relevant authorities, this petition cannot be dismissed on the point of maintainability. The Hon'ble Supreme Court of Pakistan in the matter of Messrs Liberty Car Parking (Pvt.) Ltd. through Director v. Commissioner Inland Revenue (Ex-Commissioner of Income Tax/Wealth Tax), Lahore and others (2021 SCMR 375), while dealing with the question relating to competence of an authorized person to institute proceedings before a court of law without resolution of the Board of Directors, has inter alia held as under:- "7. The learned High Court while knocking out the petitioner mainly observed that the company is a juristic person and its functions are regulated and conducted by the Board of Directors and the company acts through its Board of Directors. The Court further held that any officer of the company shall perform any act only on the authorization of the Board of Directors and by no other means and the same shall be by a proper resolution. We may observe that by now the law has been well settled. This Court in Rahat and Co. v. Trading Corporation of Pakistan (PLD 2020 SC 366) has categorically held that a company is a juristic entity and it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Code of Civil Procedure. It has also been held that a person may be expressly authorized either by the Board of Directors or by a power of attorney.
However, in absence thereof and in cases where pleadings have been signed by one of its officers, the same can be accredited by the company by express or implied action. It would be advantageous to reproduce the relevant portion of the said judgment. The same reads as under:- "10. It cannot be disputed that a company like the appellant can sue and be sued in its own name.
Under Order VI, Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order XXIX, Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order VI, Rule 14 together with Order XXIX, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order XXIX can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order XXIX, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order VI, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer." (Underlined is to provide emphasis)
8. We have been informed that although the appeals filed before the High Court were not authorized by Board of Directors by proper resolution but they were duly signed by the Chief Executive Officer of the petitioner company. According to section 2(18) of the Wealth Tax Act, 1963, the definition "Principal Officer" is used with reference to a company, means the secretary, manager, managing agent or managing director of the company, and includes any person connected with the management of the affairs of the company upon whom the Deputy Commissioner has served a notice of his intention of treating him as the principal officer thereof.
The definition of principal officer clearly shows that the Chief Executive Officer of the petitioner company is the principal officer and if he had signed the appeals before the High Court, the same would be accorded as express ratification by the company. In this view of the matter, the learned High Court ought to have decided the appeals on merits and not on technical grounds.
9. For what has been discussed above, we are of the considered view that the impugned judgment of the High Court is not based on the proper appreciation of law. Consequently, we convert these petitions into appeals, set aside the impugned judgment and remand the case back to the High Court to decide the appeals filed by the petitioner afresh in accordance with law."
14. Respondent No.3 repeatedly argued that the Policy, 2008, was in existence at the time of pendency of matter before the forums below. The said assertion of respondent No.3 stands negated from the following portion of judgment of PLAT:- "2. Learned counsel for the Appellant Bank has argued that the Staff Service Rules, 1999 including Ruled 59(1)(b) thereof, providing for grant of advance increments on improvement of educational qualifications, are no more in existence and have been replaced in 2008 by UBL s Human Resource Police Manual as well as by Circular No.1675 dated 01.02.2010...."
Moreover, the Bank also contested the Grievance Petition filed by respondent No.3 by inter alia raising objection that after repeal of the Rules, 1999 relief claimed by respondent No.3 was not tenable. In this scenario, the plea raised by respondent No.3 cannot be given any weightage.
15. Now coming to the objection raised by respondent No.3 against competence of the petitioners to file this petition on the basis of Power of Attorney, I am of the view that a perusal of Power of Attorney attached with this petition shows that the petitioners were empowered to institute/defend proceedings before different forums, thus, the objection raised by respondent No.3 carries no weight. While dealing with somewhat similar situation, this Court, in the case of Soneri Bank Limited v. Messrs Multan Rice mills and others (2017 CLD 1731) has inter alia concluded as under: - "7. The suit has been instituted by the plaintiff bank through its officials and their powers of attorneys have also been appended with the plaint. Section 9 of the Ordinance empowers three categories of persons to file a suit (a) the branch manager (b) an officer authorized by a power of attorney and (c) an officer who is otherwise authorized by a financial institution. It is quite clear that an officer of a financial institution who holds a power of attorney in his favour need not append anything else other than the said power of attorney to demonstrate his authority to institute the suit under section 9 of the Ordinance. Had it not been so, section 9 of the Ordinance would have required production of further documents other than the power of attorney by the attorney holder to demonstrate the authorization of the person executing the power of attorney.
Under section 9 of the Ordinance, an officer of the financial institution holding a power of attorney is the designated person to file suits on its behalf (see Ihsan-ul-Haq v. MCB Bank Limited 2016 CLC 187). The suit of the plaintiff bank has, thus, competently been filed."
16. During arguments, respondent No.3 pleaded that since the Power of Attorney used by the petitioners to file this petition was meant for internal working of the Bank, same could not be used to justify maintainability of this petition. The plea of respondent No.3 stands negated from the recitals of the Officer's Power of Attorney on the basis whereof the present petition was filed. Moreover, when proceedings have been instituted by an authorized person of a bank, the same cannot be held non-maintainable. Reliance in this regard can be placed on the cases reported as First Dawood Investment Bank Ltd. v. Bank Islami Pakistan Ltd. (2019 SCMR 1925), Messrs Bahawalpur Cotton Company v. United Bank Limited (2021 CLD 434) and Allied Bank Limited through Principal Officers v. Messrs S.G. Polypropylene Pvt. Ltd. through Directors/Chief Executive and 5 others (2018 CLD 199). In the case of First Dawood Investment Bank Ltd. (Supra) the Apex Court of the country has clinched the issue, under discussion, in the following manner: - "6. In our opinion, Mr. Abdul Hafeez Lakho's contention that the powers of attorney were issued on behalf of the credit administration department and the Legal Department and not by the bank itself, is negated on the face of the same as they have been executed by the Chief Executive Officer of the bank and authorizes the two officers of the bank to file suits etc. for recovery of money and other purposes before the Courts in Pakistan and hence the words appearing in the power of attorney in the recitals i.e. on behalf of the legal department or the credit administration department are merely explanatory. Insofar as the cases cited by the learned ASC are concerned, we find
7. For all the foregoing reasons, this Petition is dismissed and Leave declined."
If the objection raised by respondent No.3 is considered in the light of the afore-referred judgments there leaves no doubt that it hardly holds any water, therefore, is accordingly spurned.
17. Now coming to the case-law, referred by respondent No.3, I am of the view that the same being inapplicable to the facts and circumstances of the present case is of no help to him inasmuch as in the cases of Chairman, Pakistan Agricultural Research Council (PARC), Islamabad and another and Muhammad Masihuzzaman (Supra), the Apex Court of the country upheld the judgment of the Federal Service Tribunal for the reason that once promotion was granted to a civil servant, the same could not be withdrawn and no limitation runs against a void order but when the question of limitation is irrelevant in the case of respondent No.3, the cases, under discussion, are distinguishable. Insofar as the case of Dr. Muhammad Arslan former Vice Chancellor (Supra) is concerned, the Apex Court of the country granted leave to consider that as to whether the petitioner, in the said case, could be denied relief especially when he was not seeking his reinstatement rather he was clamouring for payment of his arrears. Firstly, the order of the Hon'ble Supreme Court of Pakistan, being a leave granting order, has no binding force and secondly, question involved in this case is entirely different as it is yet to be decided by this Court as to whether respondent No.3 was entitled for annual increments on improvement of education even despite repeal of Rules, 1999. As far as case of Allied Bank of Pakistan Ltd. (Spura) is concerned, suffice it to note that in the referred case the power of attorney was regarding the delegation of some powers for financial transaction which is not the position in the case in hand inasmuch as the bank officers, who filed the present writ petition, were duly authorized by the competent authority to pursue the proceedings on behalf of the Bank before different forums and to institute proceedings on its behalf, thus said case also stands distinguish. Taking up the cases of Khan Iftikhar Hussain Khan of Mamdot, represented by 6 heirs, Messrs Javedan Cement Limited and National Insurance Corporation and others (Supra) I am of the view that the procedure to give authorization on behalf of a company, corporation or banking company are entirely different.
Moreover, as discussed earlier, the Apex Court of the country in the case of First Dawood Investment Bank (supra) has declared the power of attorney issued in favour of different authorities of the bank are as good as executed by private persons in favour of someone else, thus, the cases under discussion are of no help to respondent No.3. Now coming to the case of Messrs Sethi Straw Board Mills Ltd. (Supra) , I have noted that the said case revolves around the limitation provided to the employee to serve Grievance Notice upon the employer but when respondent No.3 is not being knocked out on the point of limitation said judgment is also becomes irrelevant.
18. As a sequel to above discussion, this petition is accepted and the impugned decisions referred by the labour forums are set-aside. As a result the Grievance Petition filed by respondent No.3 shall stand dismissed. No order as to costs.