' SAJJAD ALI SHAH, J.-These Constitutional Petitions are filed against the impugned order dated 21st February, 1981 passed by the Sind Labour Appellate Tribunal in two appeals filed by Iqbal Mujeeb and Jamshed Farooque who are now respondents before us in these petitions. In the impugned order there is a direction to the Sind Labour Court to entertain and proceed with grievance petitions filed under section 25-A of I. R.
0. As no res judicata operateed as contemplated under section 11 of Civil Procedure Code for the reason that previously with the consent of the parties appeal filed before the Appellate Tribunal was withdrawn as there was a departmental appeal available which was pursued and was finally dismissed by the President of Habib Bank (now petitioner before us).
2. The relevant facts shortly stated are that iqbal Mujeeb and Jamshed Farooque are employees of Habib Bank and on the charge of misconduct an inquiry was held against them in which the charge was proved and ultimately they were dismissed from service. Both of them filed grievance petitions before the Sind Labour Court which were dismissed vide order, dated 12th May, 1979 mainly on the ground that section 25-A of I. R.
0. Was not applicable in the case of bank employees. In fact the Labour Court in these proceedings had framed as many as five issues touching upon the merits of the case also which were adverted to and dealt with. Since these grievance petitions were dismissed, Iqbal Mujeeb and Jamsheed Farooque (hereinafter referred to as affected employees) filed appeal before Sind Labour Appellate Tribunal. The learned Tribunal vide order dated 9th January, 1980 ordered that affected employees could not press appeals as they could avail departmental appeals which were not preferred before. Such statement was made by the learned counsel appearing for the petitioner. 14 days time was allowed by the learned Tribunal to file departmental appeals and in the result appeals pending before the Tribunal were dismissed as not pressed. Subsequently departmental appeals were filed which ultimately came to be dismissed by the President of the Bank. Against the order of dismissal of appeals by the President of the Bank, affected employees again rushed to the Sind Labour Court and filed grievance petitions which were heard and disposed of vide order dated 3rd August, 1980. These petitions were dismissed mainly on the ground that previously grievance petitions were filed by the affected employees on the same facts and points of law, which were dismissed against which appeals were filed before the Labour Appellate Tribunal, which were withdrawn, hence the adjudication in the previous grievance petitions on merits vide order dated 12th May, 1979 was final adjudication and operated as res judicata as envisaged under section 11 of the Civil Procedure Code. On this ground fresh petitions filed, against the order of dismissal of the departmental appeals by the President of the Bank, were dismissed. Subsequently affected employees filed appeals against the dismissal of their second grievance petitions before the Labour Appellate Tribunal and their appeals were allowed vide order dated 21st February, 1981, and in the result there was a direction to the Labour Court for remand of cases to be tried again on merits on the ground that res judicata did not apply to the facts of these petitions for the reason that affected employees had fresh cause of action as the new orders were passed by the President of the Bank in departmental appeals filed by them, which was a different cause of action from the previous cause of action which had accrued to the affected employees on account of order of termination of their services passed by the Zonal Chief who was officer in Bank lower in rank than President of the Bank.
3. In compliance of the order of remand passed by the learned Appellate Tribunal, Sind Labour Court entertained grievance petitions afresh which were finally disposed of vide order dated 25th April, 1981, whereby affected employees were ordered to be reinstated by the bank with back benefits. In the meantime before these grievance petitions on remand were disposed of in the terms stated above, the Bank filed two Constitutional Petitions in the High Court being aggrieved against the order of Appellate Tribunal in which there was a direction for remand of the case to the Labour Court. These petitions came to be admitted vide order dated 21st April, 1981. There was an application for interim stay on which notice was issued. It may be pertinent to point out that the prayer in the interlocutory application was for suspension of operation of the order of Appellate Tribunal directing remand of the case. This Court vide order, dated 14th May, 1981 granted ad interim stay and directed the petitioner/ bank to deposit Rs, 32,000 as amount of salaries and back benefits. This order of stay was subsequently confirmed vide order, dated 23rd September, 1981.
4. Mr. S. Nisar Hussain Zaidi, learned counsel for the respondents has contended before us that Constitutional Petitions filed by the bank were infructuous and non-maintainable for the reason that at the time when the stay order was granted, direction given by the learned Appellate Tribunal for remand of the case was duly complied with and the Labour Court had completed the proceedings of the case and announced the judgment by ordering reinstatement of the affected employees on 25th April, 1981. Hence there was a final order passed by the Sind Labour Court under the I. R.
0. Appeal against this order was competent and maintainable under section 37 (iii) of I. R.
0. And this appeal was not filed. Since this appeal was provided by I. R.
0. Itself under the provisions of which grievance petitions were disposed of by the Labour Court and the appeal was the first appeal provided under the same law, the bank should have filed a second appeal against the order of the Sind Labour Court before the learned Appellate Tribunal which was a statutory requirement which has been deliberately be passed by filing Constitutional Petitions. In this context Mr. A. A. Zari, learned counsel for the appellants has been pointed out that the bank was aware of proceedings before the Sind Labour Court after the order of remand was passed by the Appellate Tribunal and since in the meantime the bank had filed Constitutional Petitions in the High Court, an application was filed before the Labour Court seeking adjournment on the ground that Constitutional Petitions have been filed in the High Court and alongwith them there were filed interlocutory applications seeking stay on which notice was issued but no final order was passed, but the request for adjournment was turned down probably for the reason that no'stay order had been passed in those Constitutional Petitions. This fact is correct and borne out from the record.
The dates on which petitions were admitted, notices were ordered to be issued on interlocutory applications, interim stay was granted and confirmed as have been stated above specifically also confirm fact. Mr. Zari has further pointed out that after this development that Labour Court did dispose of the final grievance petitions, a request was made for amendment of memoranda of petitions and permission was sought to implead Sind Labour Court as respondent who had passed the final order of reinstatement of affected employees with back benefits. The request was granted and in consequence whereof separate application for injunction against respondent No, 3 was filed which was also granted.
5. On the other hand learned counsel for the respondents have argued before us that Constitutional Petitions should not have been filed and if they were filed, were infructuous and non- maintainable for the sole reason that statutory remedy was very much available under the provisions of I. R. 0. By way of appeal to the Appellate Tribunal against the disposal of grievance petitions by which reinstatement with back benefits was ordered by the Sind Labour Court. In such circumstances the Constitutional Petitions should have been dismissed as infructuous and proper remedy allowed under the Statute before the Labour Appellate Tribunal should have been followed which was not done and in these circumstances the petitions are non-maintainable. In support of this proposition a string of case law is cited and the decisions are in the case of Security Papers v.
Sind Labour Court and another , Mls. Ghafoor Textile Mills v. Fazal Imam and others , Jalaluddin and others v. Noor sain and others ,' Golden Industries Ltd. v. Province of Sind and two others . On the case basis of the instant case and the case law cited above, we are of the view that these petitions are not maintainable for the reason that against the order of reinstatement with back benefits passed by the Labour Court, statutory remedy by way of appeal was available before Sind Labour Appellate Tribunal which was not availed.
6. Another argument of Mr. Zari, counsel for the petitioner is that when the first time grievance petitions were dismissed by the Sind Labour Court all law points and merits were considered as such there was a final adjudication on all the relevant points hence the dismissal of grievance petitions by the Labour Court on the ground of bar of res judicata as contemplated under section 11 of Civil Procedure Code was very much legal, valid and unexceptionable and this order should not have been set aside to be replaced by the orders of remand by the Labour Appellate Tribunal which action has been chiefly assailed in the Constitutional Petitions. While examining this question we have found out that when the appeals were pending before Appellate Tribunal against the first order passed by the Sind Labour Court, they were dismissed as not pressed by way of a consent order and on the basis of statement made by the counsel for the bank that departmental remedy was available under Efficiency and Discipline (Banks and Financial Institutions) Rules. The learned counsel for the respondents have referred us to rule 9 in the copy of Report of the Wage Commission for Banks and Financial Institutions issued in 1974-75 in which there is a clear provision that appeal or review can be filed by an employee to an authority next higher than that who passed the order of punishment. Rule 10 clearly provides that the employee concerned, if so desires, shall have the right to be heard in person before the authority competent to hear the review or appeal. Order of dismissal of departmental appeal passed by the President of Bank is on the record and it indicates that it purports to inform the respondent that appeal filed by him has been dismissed. It does not show that a right of hearing was afforded to the respondent by the1 2 3 4 authority who had heard the appeal. This point has been taken up specifically in the memoranda of grievance petitions filed for the second time by the affected employees before the Sind Labour Court being aggrieved against the order of dismissal of departmental appeals by the President of the Bank which afforded fresh cause of action. Most certainly this is point which could be considered by the Sind Labour Court as to whether the affected employees were heard by the President of the Bank during the pendency of appeal or not as is required under the award of Wage Commission. In these circumstances Mr. Zari cannot take cover that grievance petitions of the affected employees dismissed for the second time by the Sind Labour Court on the ground that res judicata was proper, valid and no exception could be taken to it, particularly in view of the fact that if the case had been remanded this point could also have been considered. This argument is more of academic interest because we have already held above that these Constitutional Petitions are non-maintainable for the reason that alternate statutory remedy was available to the petitioner before the Appellate Tribunal by way of appeal which should have been filed.
7. In these circumstances and for the facts and reasons stated above we dismiss these petitions with no order as to costs.
8. Mr. A. A. Zari, counsel for the petitioners has requested that in view of the order passed above, the petitioners would certainly file appeals before the Appellate Tribunal and the time limit for such purpose has already expired which may be condoned. The request is allowed and the petitioners can file appeals before the learned Appellate Tribunal within two weeks from today, which we expect would be disposed of according to law and till then the operation of the order passed by the Labour Court on 25th April, 1981 shall remain stayed and the petitioners, who have already deposited the amount by way of wages and back benefits of affected employees with the Nazir of this Court, shall continue to do so in regard to future emoluments also till the appeals are finally disposed of. 1981 PLC 898 PLD 1981 Kar. 534 PLD 1982 SC 234 PLD 1983 Kar. 76