' AJMAL MIAN, J.-This petition is directed against the Orders, dated 26th November, 1980 and dated 31st May, 1981 passed by the learned Sind Labour Court No, VII at Sukkur and the learned Sind Labour Appellate Tribunal at Karachi respectively in Application No, 114 of 1980 and Appeal No, SUK- 882 of 1980.
' The brief facts leading to the filing of the above petition are that respondent No, 1 was an employee with the petitioner Bank. He was charge-sheeted on 26th March, 1979 for the alleged misconduct of encashing a cheque for a sum of Rs, 30,000 from the account of Messrs Kakumal Shankarmal in spite of instructions not to encash. In pursuance of the above charge-sheet, he was dismissed from the service on 31st July, 1980. Respondent No, 1 after serving notice under section 25-A of I. R.
0. Filed the above application, which was resisted by the present petitioner. However, the learned Sind Labour Court No, VII allowed the respondent No, l's above application by the aforesaid order dated 26th November, 1980 as prayed for the petitioner being aggrieved by the above Order filed aforesaid appeal, which was dismissed with the objection that the petitioner would be at liberty to initiate proper inquiry in accordance with law against respondent No, 1 on the original charge- sheet and the award of back benefits would depend upon the result of any such inquiry. The petitioner being aggrieved by the above two orders has filed the present petition.
2. (a) In support of the petition Mr. Sadik Khan, learned counsel for the petitioner has urged as follows :-
(i) That since the petitioner bank is managed under the authority of the Federal Government, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance, 1968) is not applicable in view of section 1 (4) (c) of the Ordinance, 1968.
(ii) That there was no legal requirement to furnish copy of the inquiry report and, therefore, both the Courts below erred holding that respondent No, 1 was prejudiced because of non-supply of the inquiry report.
(b) On the other hand Mr. Hassan Hameedi, learned counsel for the respondent No, 1 has contended as under :-
(i) That since there are no statutory rules governing the terms and conditions of the respondent No, 1 or the conduct of inquiry, section 1 (4) (c) of the Ordinance, 1968 is not attracted to.
(ii) That even if it is to be held that there was no legal requirement to furnish the copy of the inquiry report, the finding of the two courts that the witnesses were examined behind the back of respondent No, 1 and he was not given reasonable opportunity to cross-exam inaction the above witnesses is sufficient to sustain the two impugned orders.
3. As regards the above first contention Mr. Sadik Khan has invited our attention to section 5 of Banks (Nationalization) Ordinance, 1974 and above section 1 (4) (c) of the Ordinance 1968, which read as follows :- ' Section 5 of Banks (Nationalization) Ordinance, 1974.
5. Transfer and vesting of ownership etc., of banks.-(1) The ownership, management and control of all banks shall stand transferred to, and vest in, the Federal Government on the commencing day.
(2) All shares in the capital of a bank held by persons other than the Federal Government, a Provincial Government, a corporation owned or controlled by the Federal Government or the State Bank shall stand transferred to, and vest in the Federal Government on the commencing day, free of all trusts, liabilities and encumbrances.
(3) The vesting of any shares in the Federal Government under subsection (2) shall not affect the right inter se of a shareholder and any other person who may have an interest in such shares and such other person shall be entitled to enforce his interest against the compensation awarded to the shareholder under section 6.
(4) The safety of all deposits in banks shall stand guaranteed by the Federal Government."
Section 1 (4) (c) of the Ordinance, 1968. "1 (4) It applies to-
(c) Such classes of the industrial and commercial establishments as Government, may from time to time, by notification in the official Gazette, specify in this behalf : ' Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein."
' A plain reading of the above-quoted section 5 indicates that upon nationalization of the banks the ownership, management and control of all the banks mentioned in the schedule to the Act stood vested in the Federal Government. Therefore, it can be urged that the petitioner bank was under the management or the authority of the Federal Government. However, the question is, whether the requirement of section 1(4) (c) of the Ordinance, 1968 has been fulfilled. In order to attract the above-quoted section 1 (4)(c) there are two requirements, namely, firstly that the industrial and commercial establishment should be carried on by or under the authority of the Federal or any Provincial Government, and secondly, there should be statutory rules of service, conduct or discipline. It has been contended by Mr. Sadik Khan that since the Wage Commission appointed under, section 38-A of the I. R.
0. 1969 has given award inter alia containing the terms and conditions of the bank employees, these terms and conditions are at par with the statutory rules and, therefore, the second requirement of the above section 1 (4) (c) has also been complied with. It may be mentioned that under section 38-A of the I. R.
0. The Federal Government, may, whenever it considers necessary by notification in the official Gazette, constitute a Wage Commission for fixing rates of wages and determining all the other terms and conditions of service, in accordance with the provisions of the said Ordinance in respect of the workers of a bank or such other workers as the Federal Government may, by notification in the official Gazette, specify. It further provides the constitution of the Commission and the manner in which such a reference is to be disposed of. Section 38-G of the I. R. O. Lays down that the decision of the Wage Commission shall be binding on all employers concerned with the decision in relation to their workers and every such worker shall be entitled to be paid the wages and governed by the terms and conditions determined by the Wage Commission. Furthermore, section 381 provides that the provisions of sections 38-A, 38 B, 38-C, 38-D, 38-E, 38-F, 38-G and 38-H shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of the Industrial Relations (Amendment) Ordinance, 1974, Mr. Sadik Khan has invited our attention to the Disciplinary Rules framed by the Wage Commission for the year 1974-75. It has been vehemently urged by him that these are statutory rules and, therefore, the above requirement of section 1 (4) (c) has been complied with. We are unable' to agree as the above rules framed by the Wage Commission cannot be treated at par with the statutory rules, which are framed by an authority provided under an Act for the purpose of carrying out the provisions of the Act. The rules framed by the Wage Commission can at the most be treated as a part of the award binding on the workmen working with the petitioner bank. We are, therefore, of the view that since no statutory rules in terms of section 1(4)(c) of the Ordinance, 1968 exist in relation to petitioner's workmen, respondent No, 1 was entitled to invoke section 25-A of the I. R.
0. In order to enforce his right conferred under Ordinance, 1968.
4. Reverting to .The second contention of Mr. Sadik Khan that there was no legal requirement to furnish a Copy of inquiry report, it may be observed that he has referred to the case of Dawood Cotton Mills Ltd. v. Guftar Shah and another in which the Hon'ble Supreme Court while dealing with the question whether a copy of the inquiry report is to be furnished to a workman has made following observation :- "In the provision under consideration the requirement is only in regard to the information to be given of the alleged misconduct and of giving an opportunity to explain the circumstances alleged against him. All that this conveys is : firstly, an opportunity to deny his guilt and establish his innocence which the workman can only do, provided he is told what the charges levelled against him are and the allegations on which such charges are based ; and secondly, an opportunity to defend himself by cross-examining the witnesses and by examining himself or any other witness in support of his defence. As the rules of natural justice are not embodied rules therefore, compliance is only needed to the extent to which such rules are incorporated in the statutes. Thus, the second requirement of the provision does not travel beyond what is secondly stated. This conclusion gains strength from the following observation in the case of Suresh Koshy George v. University of Kerala and others at page 204 of the Report :- "There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that Article that every disciplinary proceeding must consist of two inquiries, one before issuing the show-cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course. Even if a show-cause notice is provided by law, from that it does not follow that a copy of the report on the basis of which the show-cause notice is issued should be made available to the person proceeded against or that another inquiry should be held thereafter."1 2 ' On the other hand Mr. Hassan Hameedi learned counsel for the respondent No, 1 has invited our attention to the case of Islamabad Club v. Punjab Labour Court No, 2 etc. in which Hon'ble Supreme Court has made following observation on the question of furnishing a copy of the inquiry :- "The High Court seems to us to be right in observing that the employee was given notice of only one misconduct, namely, that of holding meetings during working hours in the Club premises without obtaining previous permission, yet the findings of the inquiry officer covered other matters also which disclosed far more serious acts of misconduct on the part of the respondent, which could not be said to be included in the original charge framed against him. We think that it is clear that the findings recorded by inquiry officer on matters, which were not included in the original charge, must have influenced the mind of the Administrator in awarding the punishment of dismissal to the respondent. In the circumstances, it could not be said that the respondent had a reasonable opportunity of defending himself against the charges, which have formed the basis of disciplinary action against him, as no copy of the inquiry report was furnished to him and he was, therefore, not in a position to rebut the findings recorded against him on these matters. On this view of the matter, it could certainly be held, as the High Court has done, that the requirement of reasonable opportunity, as embodied in clause (4) of Standing Order No, 15, were not fulfilled in this Case."
5. Even if we were to hold that there was no legal requirement t furnish a copy of the inquiry report, the inquiry suffers from very serious infirmity highlighted by the learned Sind Labour Appellate Tribunal, namely, that the witnesses were examined by the petitioner's inquiry officer in the absence of respondent No,
1. It is true, that from the record, it seems that he was asked to cross- examine the witnesses but unless he would have been furnished with the copies of the Statements of the witness or the witnesses would have been examined in the presence, he could not have cross-examined the witnesses. From the documents a pages 51 and 55 annexed to the petition, it seems that witnesses were not B examined in the presence of respondent No, 1 and, therefore, the conclusion arrived at by the two Courts below that the petitioner was prejudiced by the manner in which the inquiry was conducted seems to be in accordance with law and does not call for interference by this Court in Constitutional writ petition. We, therefore, dismiss the above petition with no order as to costs and maintain the order of the learned Sind Labour Appellate Tribunal and observe that the petitioner shall be at liberty to initiate fresh proceedings in terms of the observation of the learned Sind Labour Appellate Tribunal. PLD 1981 SC 225 AIR 1969 SC 198 PLD 1980 SC 307