' In this appeal the decision dated 1st June, 1981 passed by the learned Presiding Officer, Punjab Labour Court No,
8. Bahawalpur has been challenged, whereby the grievance petition of the appellant for his reinstatement in service was dismissed.
2. The appellant was a Cashier. On the ground of two charges he was dismissed from service. One charge was that he had lost the keys of two steel almirahs and the strong room and the other was that he had misappropriated an amount of Rs, 100 on 25th May, 1975. Two charge-sheets were signed by the Bank Manager and not by the competent authority i,e, the Assistant Vice-President.
Learned counsel for the respondent has said that one of the charge-sheets was signed by the Bank Manager but that too under the instruction of Assistant Vice-President and the other was given by the Assistant Vice-President, himself, but the learned counsel stands contradicted by the original charge-sheets Exhs P. 8 and P.
9. They bear the signatures of the same officer and the designation under the signatures is given as Manager. There is no indication in these charge-sheets that the Bank Manager had been authorised by the competent authority to issue charge sheets. The learned counsel for the respondent has, however, argued that since the legality of the charge-sheets was not challenged in the grievance notice, therefore, in grievance petition no such plea could be taken. In this respect he relies upon 1975 PLC 196. The fact involved in the case from which the authority arose was that in the grievance petition payment of the dues only was requested and reinstatement was not prayed for. It was, therefore, held that if he had not brought the grievance to the notice of the employer, he would loose his right under section 25-A of the Ordinance. It is apparent from the perusal of the authority cited by the learned counsel that the question of fact was involved which has not been put forth in the grievance notice and was claimed in the grievance petition. Legal point can be raised at any stage of the case. The question whether the authority who gave charge- sheets was competent or not is a legal point. There is no dispute that the charge-sheets were given by the Bank Manager. As mentioned above, from the charge-sheets it is clear that they bear the signatures of the Bank Manager. So only a legal effect is to be seen whether such charge- sheets were valid and effective. Such a point can be raised at any stage even though it was not raised in the grievance notice. Complete details are not to be given in the grievance notice. This is noteworthy that even though in the grievance petition it was urged that the charge-sheets were not issued by the proper authority, yet the grievance was not redressed. So even if such a point had been raised in the grievance notice, the result would have been the same as now stands. Since the employer has not redressed the grievance after application under section 25-A was made and contested, it cannot be said that if the point had been raised in the grievance notice, the grievance could have been redressed.
3. The learned counsel for the respondent has raised a point that the petition Was not made against the bank but against a designation. The grievance petition was made against the Assistant Vice-President.
I do not find any force in the argument of the learned counsel that it should have been made against the bank. In civil cases it may be said that the bank being a corporate body and the juristic person, suit should be brought against it, but in labour cases that rule is not applied. In these cases the employer is to be sued. The grievance notice is always given to the employer and the petition also is brought against him, Section 25-A is clear on the point. Subsection (I) of section 25-A says that the grievance notice is to be given to the employer. Subsection (4) B of section 25-A does not say that the grievance petition is to be brought against the establishment. Learned counsel has cited on the point 1980 PLC 568(r). No doubt, such an observation has been made in this authority, but with great respect I do not find myself in agreement with the view expressed by the Hon'ble Judge.
4. Learned counsel for the respondent has also said that it was contended before the learned lower Court that the appellant was not a workman but no finding has been given on the point. I have carefully gone through the written statement but have not been able to find any objection to the effect that the appellant is not a workman. Learned counsel has raised this point during arguments without exercising due care and caution and going through the written statement. Needless to say that the duties of a cashier are clerical and not managerial or supervisory. He does not come within the definition of employer either. C The point, therefore, cannot be taken up during arguments in appeal. This is a question of fact and should have been raised in the pleadings.
5. The other point raised by the learned counsel is that the National Industrial Relations Commission and not the Labour Court had jurisdiction. He has cited 1982 PLC 1. N. I. R. C. Had jurisdiction only in the cases involving unfair labour practices. The functions of the Commission are given in section 22-A (8) (c) of the Industrial Relations Ordinance, 1969. The relevant clause reads as under :- "to adjudicate and determine an industrial dispute to which an industry-wise trade union or a federation of such trade unions is a party and any other industrial dispute which is in the opinion of the Federation Government of national importance and is referred to it by that Government."
Section 22-B (3) (a) is also clear on the point. It reads as under :- "in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences, or enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court."
' It is clear from the above that only the cases based on allegations of unfair labour practices on the criminal side or civil side can be heard by the benches of the Commission by exercising same powers which are exercised by a Labour Court. In clause (b) there is no restriction of unfair labour practices but it says that the dispute should be in relation to industry-wise trade union, federation of such trade unions, federation at the national level and the cases referred to the Commission.
The present case is not of such a nature. Moreover, clause (a) of section 22-B (3) does not bar the jurisdiction of the Labour Court but says that in the cases of unfair labour practices the Commission shall have the same powers as are exercised by a Labour Court. So, the Labour Courts are competent to hear the cases like the one under discussion. The law enunciated in the authority cited by the learned counsel for the respondent with due respect to the honourable Judge is not correct.
6. The next point raised by the learned counsel for the respondent is that the grievance notice and the grievance petition were time-barred. The appellant had previously brought the grievance petition but the same was dismissed by the learned lower Court on 20th August, 1979 on the ground that there was provision of departmental appeals but the said remedy has not been exhausted before coming to the Labour Court. Thereafter, the appellant brought departmental appeal which was dismissed on 5th May, 1980. The grievance notice was given by the appellant on 15th June, 1980 and brought the second grievance petition on 11 th August, 1980. The learned counsel says that since the appellant was dismissed on 4th October, 1979 the grievance notice given on 5th May, 1980 and the petition brought on 11th August, 1980 were time barred. In cases where' an employee elects to exhaust departmental remedy first, the cause of grievance arises to him on the date on which his departmental appeal or representation is dismissed. Bringing of departmental appeal is not necessary and the decision of the learned lower Court dated 20th August, E 1979 was wrong, but since the appellant in compliance of that order had brought the departmental appeal, the cause of grievance arose to him from the dismissal of that appeal. This is noteworthy that the previous grievance petition of the appellant was dismissed on the objection of the respondent that without exhausting departmental remedy the grievance petition could not be brought. The learned counsel says that the appellant instead of bringing the departmental appeal should have challenged the earlier order of the learned lower Court in appeal. Since on the objection of the respondent the previous petition of the appellant was dismissed erroneously, the respondent is estopped from saying that the previous order of the Labour Court was wrong, therefore, the appellant 41 should have challenged it in appeal or that the cause of grievance should be taken to have arisen to the appellant from the date of dismissal and not from the date of dismissal of his departmantal appeal. The learned counsel says that there is no estoppel against law, therefore, the respondent was entitled to plead that the previous decision of the Labour Court being wrong, the appellant should not have in compliance with that order brought the departmental appeal and should have challenged the order of the Labour Court in appeal before this Tribunal. I do not find any force in this argument. When a party raises a plea in the pleadings and the Court rightly or wrongly acts upon it, the said party is estopped from saying that the decision of the Court was wrong. The learned counsel also says that the departmental appeal brought by the appellant was time barred. Since the appeal was entertained and decided on merits, now it cannot be urged that it was time-barred, therefore, the grievance notice and the grievance petition be regarded as time-barred. If the appeal had not been entertained and had been rejected as time-barred, the appellant may have given the grievance notice and brought the grievance petition without further loss of time, He cannot be made to suffer for the at of the respondent. Since his appeal was not rejected as time-barred and was entertained. He was given an impression that the authority had condoned the delay and wanted to decide the appeal on merits. Learned counsel in support of his argument has cited PLD 1964 SC 536, but no such point in support of which learned counsel has cited this authority was involved in the case. Likewise 1975 PLC 556 and 1977 PLC 456 is not relevant.
7. Since the very charge-sheets were given by the authority who was not competent, the whole superstructure raised upon it fell to the ground.
8. So far as merits of the case are concerned, according to the statement of the complainant namely Khadim Hussain, who appeared as P. W. 1 before the learned lower Court, the amount of Rs, 770 had been delivered by him to Muhammad Afzal, who issued the receipt to him in the amount.
He further stated that after realising that he had delivered Rs, 770 but receipt was given to him of Rs, 670, he in the next morning met Ashfaq, Peon, who told him that he had paid Rs, 100 in excess and that he should go to the bank and get further receipt, whereupon he (the witness) went to the bank and obtained another receipt from Muhammad Afzal, Clerk. In cross-examination it was not put to him that he had delivered the amount to the appellant and that it was the appellant who had given him the receipt of Rs, 670. Almost same kind of statement was given by him in the enquiry. However, he stated that the slip of Rs, 670 was taken by him from Muhammad Afzal and delivered Rs, 770 to the appellant. He further stated that he went to the house of the cashier, where Muhammad Afzal was also present and told the cashier that he had given him Rs, 100 more, but the appellant did not admit it. On merits the appellant does not appear to have a good case. Another technical defect is that the appellant was not given an opportunity to examine the witness in defence. He was not enquired if he wanted to produce any evidence.
9. Since the charge-sheets were given by the incompetent authority and the appellant was not afforded opportunity to produce defence, the order of dismissal and the impugned decision of the learned lower Court are not sustainable. I, therefore, accept the appeal and setting aside the impugned decision of the learned lower Court and the dismissal order, direct the re-instatement of the appellant in service. Since on technical grounds, the appellant has been re-instated, he is not entitled to back benefits, 1584 PLC 969 [Labour Appellate Tribunal Punjab] Present Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal THE PUNJAB PROVINCIAL CO-OPERATIVE BANK LTD. . versus ABDUL RAZZAQ Appeal No, LHR-205 of 1981, decided on 30th November, 1982.
(a) Industrial Relations Ordinance (XXIII of 1969)- - --- Ss. 25-A & 37-Labour Court disposing of several petitions through single judgment by consolidating same-Appeal against such order of Labour Court - Separate appeals, held, should have been filed-Appeal against one party, held, could not be treated against all those succeeding in such single order of Labour Court.
[p. 970]A
(b) Industrial Relations Ordinance (XXIII of 1969)- -- S. 25-A-Grievance petition-Limitation -Petition claiming customary bonus-Such bonus becomes due on close of year-Grievance notice to be served within 3 months from close of year when bonus not paid. [p. 971]B
(c) Industrial dispute- -- Bonus-Customary bonus-Ingredients : (1) Based upon old custom ; (2) continuous and (3) unconditional-Homogeniety of rate of bonus contains element of acquiescence-Element of acquisence to be present in case of customary bonus and in absence thereof bonus is ordinary and not customary and thus not contractual-Bonus not paid during three years due to loss-Bonus, in circumstances, held, did not attain character of customary bonus. (pp. 971, 972)C & D Mian Nisar Saleem for Appellant. Respondent in person. Date of hearing : 3rd November, 1982.
' This appeal is directed against the decision, dated 30th March, 1981 recorded by the learned Presiding Officer, Labour Court No, 1, Lahore, whereby the grievance petition of the respondent alongwith the grievance petition of the other workers was accepted and the appellant was directed to pay one month's basic pay as customary bonus in addition to statutory bonus already paid to the workers. The respondent and many other workers brought separate grievance petitions claiming the customary bonus. The learned lower Court consolidated all of them recorded proceedings in the petition of Abdul Razaq, respondent and disposed them of through the single impugned order. The appellant has challenged the order of the learned lower Court only against Abdul Razaq, respondent but has not brought any appeal against the remaining workers. It appears that the order has been challenged in this appeal with regard to other workers also by using the words "respondents" in plural number. The title of the appeal The Punjab Provincial Co- operative Bank Ltd., Shahra-i-Quaid-i-Azam, Lahore v. Abdul Razzaq, Supervisor through Mr. Abdur Razzaq, Punjab Provincial Co-operative Bank Ltd., Shahrah-i-Quaid-i-Azam, Lahore, "After the words supervisor the words "and others" were typed but thereafter these words were scored off with ink. It cannot be said whether the appellant or its counsel or some other person scored off the said words, Whatever the case may be separate appeals could be brought against every worker since all of them has brought separate grievance petitions. The mere fact that the learned lower Court consolidated all the petitions did not convert all those applications into one, terminating their individual entity. It cannot be said that this appeal is against all those workers whose petitions were accepted by the learned lower Court because they are not mentioned as respondents nor any separate list of respondents containing their names is with the appeal. This judgment will, therefore, dispose of only this single appeal brought against Abdul Razzaq only.
' The facts are that the appellant had been paying bonus to the workers for 15 years sometimes at the rate of two months' pay and sometimes at the rate of 3 months' pay. In the occasion of losses no bonus was paid. The present appeal deals with the claims to the bonus for the year 1978-79 which was refused by the appellant on the ground that the appellant had suffered losses. The application of the respondent was contested by the appellant raising objection that it was time- barred and that on account of losses bonus could not be claimed. The learned trial Judge has held that contractual bonus can be claimed irrespective of losses., He has treated the application of the respondent within time for the reason that the grievance arose on the date on which the bonus - was refused to the respondent and was allowed to the others and that from the said date, the grievance notice and grievance petition was within time. Statutory bonus is allowed by Standing Order 10-C of the Standing Orders Ordinance, 1968 which provides that bonus should be paid within 3 months of the closing year. Since customary bonus has been claimed and not statutory bonus no period of limitation is prescribed for it. The result is that when the bonus becomes due on the close of the year and it is not paid, grievance notice is to be served within 3 months from that time. In the present case the customary bonus was refused on 22nd December, 1979 and this was the starting time of limitation. The petition, therefore, was within time.
3. A customary right or in other words a right based upon custom must be old, continuous and unconditional if a break comes in or it is subject to certain conditions it cannot be recognised as customary. All the three ingredients are necessary and if one is missing no custom can be said to have existed. It is not old and continuous as break came. It is not unconditional and it was allowed on the condition of profits only The breaks came in on account of losses. It was paid not as uniform rate but according to the profits. It contains the elements of acquiescence on the part of both the parties and gets the force of a contract and thus becomes enforceable at laws. Homogeneity of rate manifests the element of acquiescence. Acquiescence means not objecting to a thing which is unfavourable or less favourable. Usually bonus is paid on account of profits and according to profits. If the employer pays bonus even in case of loss he acquiesces in it. Likewise if bonus is paid at a uniform rate even though profits are high the employees acquiesce by not claiming at a high rate according to the profits. So element of acquiescence on behalf of both the parties is present in the case of customary bonus. If this element is absent then bonus is ordinary and not customary and thus not contractual. If not being contractual is not enforceable at law and thus cannot be said to be a right guaranteed by any law. The learned lower Court has cited ruling of Supreme Court of India in which ingredients of customary bonus are given but in spite of admitting that two ingredients were not present in this case, allowed bonus to the respondents. He says that in 1975 the customary bonus had become old and became a right guaranteed and the mere fact that in 1976-77 and 1978 this kind of bonus was not claimed on account of losses was not sufficient to deprive the workers of this right guaranteed by law. He has ignored one thing which is the custom must be continuous. In the present case this kind of bonus was not allowed for three successive year yet the respondent did not bring any action. Now even if it be said that the learned lower Court is correct in holding that the two ingredients exist, still as the remaining two ingredients do not exist this kind of bonus did not successfully attained the character of customary bonus. A bonus becomes customary if all the four conditions given in the authority exist continuously for many years. The condition of homogeneity of rate was absent from the very inceptions. Likewise the condition that bonus should have been received even in years of losses is also missing meaning that it was not paid continuously. The bonus, therefore, did never attain the character of customary bonus.
' As a result of the discussion made above I accept the appeal and setting aside the decision of the learned lower Court so far as its relates to the case of Abdul Razzaq, respondent only and dismiss his grievance petition. As the other workers who too had brought separate petitions were not impleaded as party to this appeal, this judgment shall not effect the decision of the learned lower Court so far it relates to their cases.