This appeal arises from the decision dated 8th March, 1977 passed by the learned Presiding Officer, Punjab Labour Court No. 7, Gujranwala, whereby the appellants were directed to treat the respondents as permanent employees of the Bank with all rights, benefits, privileges, and remunerations of permanent employees.
2. The respondents, except respondent No. 3 who was a Godown Chowkidar, were recruited as Godown Keepers by the Bank of Bahawal--pur Limited. With effect from 17th July, 1974 the Bank of Bahawalpur was merged in the National Bank of Pakistan alongwith all assets and liabilities and all the employees, including the respondents, were absorbed in the National Bank of Pakistan under the Amalgamation Scheme under section 17 (1) of the Banks (Nationalization) Act, 1974. The respondents urged that before merger they had acquired the status of permanent employees of the Bank of Bahawalpur, therefore, on the merger of the said Bank, they became the permanent employees of the National Bank of Pakistan. They also averted that the Wage Commission appointed under section 38-A of the Industrial Relations Ordinance, 1969 confirmed the amalgamation scheme and by the Wage Commission Award, the permanent services of the respondents were protected, and in order to implement the said Award the Senior Executive Vice- President of the appellant bank issued instructions vide circular letter No. 73, dated 10th February, 1976 directing that all the employees appointed prior to 30th June, 1974 be confirmed. The respondents took the shelter of W. P. Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 saying that prior to the merger, the banks were governed by the said Ordinance and since the respondents were engaged on a work of perma--nent nature likely to last for more than nine months, they had become permanent by serving for a period of three years successfully They complain that the administration of the appellant bank treated them with discrimination and issued the orders of termination of their services followed by the issuance of fresh appointment letters appointing them on temporary basis from the date of the letter of termination. They in their grievance petition challenged the said act of the appellants as mala fide, illegal and in contravention of the Wage Commission Award and the amalgamation scheme. On behalf of the appellants it was contended that the respondents could not take the benefit of section 25-A of the Industrial Relations Ordinance, 1969 and that under the W. P. Shops and Establishments .Ordinance.
1969 their services could be terminated at any time and further that they were not covered by the definition of workman as given in the Standing Orders Ordinance as their duties were mainly of supervisory nature and thus they had no right guaranteed by any law, award or settlement. It was also contended that no grievance notice as required by section 25-A was served and further that the Standing Orders Ordinance, 1968 was not applicable to the National Bank of Pakistan. On facts it was contended that the respondents had been employed on temporary basis by the Bank of Bahawalpur and they never acquired any right of becoming permanent. About circular letter No. 73 it was contended that it did not concern the respondents as it related to only those employees who had been appointed during the year 1974.
3. It has been argued by the learned counsel for the appellants that service of grievance notice was necessary and since it was not given the petition was not maintainable. At the time the respondents were termi--nated and they brought the grievance petition on 8th November, 1976, subsection (6) of section 25-A was present, according to which, giving of notice was not necessary, if the petition was made within two months of the termination. Learned counsel has argued that since the terms and conditions only of the respondents were changed and they were not terminated, subsection.(6) which is applicable only in cases of termination, was not attracted. 1 do not find any force in this argument. As a matter of fact firstly the services of the respondents were terminated and they were reappointed temporarily. Since their services were terminated and they challenged it, subsection (6), which was applicable at that time, applied to their case and thus giving of grievance notice was not necessary.
4. The other point raised by the learned counsel for the appellants is that Standing Orders Ordinance, 1968 is not applicable to the National Bank of Pakistan, therefore, the respondents had no right guaranteed by any law or award. I totally agree with him that since the National Bank of Pakistan has been nationalised, it is being run by or under the authority of the Government and has its own statutory rules and the Wage Commission Award is also applicable, under proviso to subsection (4) of section 1 of the Standing Orders Ordinance, 1968, the said Ordinance is not applicable to the appellant Bank, but the matter does not end here, because the respondents can take benefit of the Wage Commission Award. There is no force in the argument of the learned counsel that the Wage Commission Award does not guarantee any right to the respondents. The award is given under section 38 of the Industrial Relations Ordinance. 1969 and it is published in the official Gazette and has a statutory force.
5. The main question to be seen is whether the respondents in the Bank of Bahawalpur were temporary or permanent workmen. Mr. Zaheer (R. W. 1) stated that they were on work charge basis employed on the expenses of the customers, but he could not produce any document saying that he could not find them. Since the Bank of Bahawalpur was merged in the National Bank of Pakistan, all the documents of the said Bank came into the possession of the appellant Bank, therefore. This is wrong that the documents are not available. Non-production of the documents would raise a presumption that if they had been produced, they would have disproved the case of the appellants. Since it has not been proved that the respondents were working on work charge basis or their services were not continuous therefore, they having ,worked for three years had become permanent. They became permanent under Standing Orders Ordinance, which was applicable to the Bank of Bahawalpur before it was merged in the National Bank of Pakistan . Before the nationalization of the banks, the banks were not functioning by or under the authority of the Government, therefore, Standing Orders Ordinance, 1968 was applicable According to Standing Order 1, a person on completing the probationary period of three months becomes permanent, if he is posted on a post likely to last for more than nine months. Since the respondents worked for three years, it is apparent that the posts were permanent. Since they had become permanent before the Standing Orders Ordinance ceased to remain applicable to the National Hank of Pakistan, there is no force in the argument of the learned counsel that they were temporary. Even Mr. Muhammad Zubair, Staff Officer, who appeared as P. W. 1, admitted that the respondents had more than one or two years service in the Bank of Bahawalpur. So even if it is said that the services of the respondents were not three years old at the time of merger and they had served for one or two years, even then they before the merger had become permanent under Standing Order 1, because the appellants have failed to show that, they had been working in the Bank of Bahawalpur on the work charged basis and that their pay was charged from the customers. On one hand it is said that the respondents cannot take benefit of the Wage Commission Award and on the other it was argued before the lower Court that the services of the respondents could be terminated under paras. 232, 233 and 234 of the Wage Commission Award. Even under the paragraphs referred to above, the services of the respondents could not be terminated, because they were not working at the time of their termination as proba--tioners. According to paragraph 232, a candidate can be terminated within the period of probation. Under paragraph 233, the appointing authority is competent to extend the period of probation determinate the t services, if satisfactory progress during the probationary period has not been shown. Firstly, the respondents had completed the period of probation long before and had become permanent before the amalgamation scheme come into operation and secondly there is neither any allegation nor proof that after the merger they had shown unsatisfactory progress. Likewise, paragraph 234 is not applicable, because according to this paragraph, after the expiry of the period of probation the services can be terminated with one month's notice or one month's pay in lieu thereof. If Standing Orders Ordinance applies then reasons for termination are to be given and if Wage Commission Award applies, even then without any reason one cannot be terminated. Of course, if the posts are abolish. Ed, the services can be terminated on one month's notice. Moreover, paragraph 234 is to be read alongwith paragraph 233, which would mean that the services can be terminated either asking the employee to resign of one month's notice or pay in lieu thereof if he has not shown satisfactory progress. If paragraph 234 is to be taken to be an independent and having no connection with paragraph 233, then very strange and anomalous result would follow. Under paragraph 233 the appointing authority can terminate the services of an employee during the period of probation, if he fails to show satisfactory progress, meaning that if his work is satisfactory then his services cannot be terminated. But it would be strange if it is said that where a person has completed his probationary period successfully and there is no allegation against him that his work is unsatisfactory, his services can be terminated on one month's notice or pay in lieu thereof.
The correct interpretation, therefore, is that paragraph 233 or 234 are to be read together and under paragraph 234 and employee can resign or his service can be terminated with one month notice,, if his work is not satisfactory. Where an allegation is that the work is not satisfactory, then it is necessary to charge-sheet him and make enquiry, giving him opportunity to show that the allegation is wrong. SOD under paragraph 234 the services of the respondents could not be termi-- nated. Learned counsel has cited 1980 PLC 568 (r), but it does no apply because it deals with the workmen on probation. There is no dispute that since the Standing Orders Ordinance is not applicable, the, protection of Standing Order 12 (3) is not available, but if any other law guarantees any right, against the infringement of that right a workman can come under section 25-A. It cannot be said that the Wage Commission Award recognized, or endorsed or bestowed arbitrary powers upon the employer to terminate the services of a permanent employee without any reason.
Paragraphs 263, 265 and 266 of the Award also, protected the respondents. The amalgamation scheme was prepared under section 15 (1) of the Banks (Nationalization) Act, 1974 and thus can be said to have a statutory force. Paragraph 266 reads as under :-- " the officers and employees of the amalgamating bank stand pro--tected in the matter of their emoluments and retirement benefits. The action taken by some banks to ask the employees of the amalgamating- banks to give option or submit resignation is, there--fore, uncalled for."
The learned lower Court has rightly observed that even if it be taken that the services of the respondents started afresh on the merger of the Bank of Bahawalpur, the period of probation being six months on its completion, the respondents became permanent. The result is that from whatever angle the case is looked at. The action taken by the appellants cannot be legalized.
6. The contention that the respondents are not workmen is equally without force. Except respondent No. 3, who is Godown Chowkidar, the rest of the respondents are Godown Keepers and their duties are not supervisory in nature. There is no evidence that the respondents have any subordinate and they supervised their work. There is evidence that their pay exceeds Rs.800.
According to the posts, they held, it is needless to say that they are not covered by the definition of employer. So they are workmen according to the definition given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969.
7. It has also been argued that the Labour Court had no jurisdiction and that the case was triable by the National Industrial Relations Com-- mission. The functions of the Commission are given in subsection (8), clauses (a) to (i) of section 25-A of the Industrial Relations Ordinance, 1969, which show that the industrial disputes to which an industry-were trade union or a Federation of such trade unions is a party and any other industrial dispute which is in the opinion of the Federal Government of national importance and is referred to it by that Government, can be tried, according to clause (a) of subsection (8). Under clause (g) the cases of unfair labour practice are to be tried by the Commission. Under clause (b) of - subsection
(9) the Commission can withdraw from a Labour Court any application or proceedings or appeal relating to unfair labour practice. .Subsection (12) of section 20-A saves the jurisdiction of the Labour Courts. It reads as under :-'
" Nothing in this section shall be deemed to exclude the jurisdiction of the Labour Courts to entertain the cases of unfair labour practice on the part of the employers or workmen whether indivi--dually or collectively."
It is thus clear that firstly the National Industrial Relations Commission has jurisdiction to try only those industrial disputes, to which an industry-were trade union or a Federation is a party in the cases of unfair labour practice and secondly even the jurisdiction of the Labour Courts has been saved in respect of the trial of cases of unfair labour practice. It has also been said that under section 38-D on the Industrial Relations Ordinance, 1969, the Wage Commission is competent to try the cases Section 38-D in no way bars the jurisdiction of the Labour Courts, rather it says that the decision of the Wage Commission published under section 38-C shall be deemed to be an award of the Full Bench of the Commission. 1, therefore, hold that the Labour Court had jurisdiction to bear this case.
8. As a result of the observations made above, I come to the conclu--sion that the Labour Court has rightly accepted the grievance petition of the respondents and issued direction to the appellants to treat them as permanent employees. There is no force in the appeal, which is dismissed.