1. HAIDER ALI PIRZADA, J.---By this common judgment we intend to dispose of the above two petitions as they involve common questions of law. The facts leading to the filing of the above petitions are as under: Civil Petition No. D-721 of 1985: The petitioner is a nationalised bank maintaining the status of corporate body as envisaged under the Banks (Nationalisation) Act XIX of 1974. The respondent No.3 was a clerk in petitioner bank, Masjid Road, Nawabshah. He was charge-sheeted on 4-7-1978 for disobedience, misbehaviour and inefficiency. Domestic enquiry on the said charges was conducted in which he participated.
2. The Enquiry Officer found him guilty of the charges of misconduct in his report. He sent grievance notice which was rejected by the petitioner on 27-9-1978. In consequence, he filed a petition under section 25-A of I. R.O. 1969 (hereinafter called the said Ordinance). The petitioner resisted the petitioner. The Labour Court dismissed the petition. He filed appeal which was subsequently withdrawn. He preferred departmental appeal which was rejected. He again filed petition under section 25-A of the said Ordinance. The petitioner resisted the petition which was dismissed.
3. Against the dismissal order, he preferred an appeal which was allowed and the case was remanded for decision on merits. The respondent No.2, on remand, recorded evidence of parties and decided the same, vide impugned order, dated 15-10-1985. The petitioner being aggrieved against the said order has preferred this petition on the grounds mentioned in the memo. Of petition.
4. Civil Petition No. D-722 of 1985: The petitioner is a nationalised bank maintaining the status of corporate body as envisaged under the Banks (Nationalisation) Act XIX of 1974. The respondent No.3 was a cashier in petitioner bank, Hathong$ Branch, District Sanghar. He was charge-sheeted on 8-7-1978 for wilful disobedience, insubordination and indiscipline. Domestic enquiry was conducted on the said charges in which he participated. The Enquiry Officer found him guilty of the charges of misconduct in his report.
5. Ultimately he filed grievance petition which was resisted by the petitioner. The respondent No.2 accepted the petition, vide impugned order, dated 15-10-1978. The petitioner being aggrieved against the said order has preferred this petition on the ground mentioned in the memo. Of petition.
6. In support of the above petitions, Mr. Obaidur Rehman, the learned counsel for the petitioners, has raised the following contentions:- (1)Whether or not the NIRC has jurisdiction to entertain petition or the respondent has jurisdiction to entertain petition.
7. (2)Whether the Wage Commission's Award supersedes the provisions of Standing Orders Ordinance, 1968?
8. On the other hand Mr. Wasiullah Qureshi, the learned counsel for the respondent No.3 has submitted that the decision of the Wage Commission can be enforced under section 25-A of the said Ordinance and the jurisdiction in such matters exclusively vests in the Labour Court. He has further submitted that the Efficiency- and Discipline Rules framed by the Wage Commission cannot be construed as statutory Rules within the meaning of section 1(4)(c) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
9. The first point for determination is as to whether the Wage Commission Award of 1975, which came into force from 1st January, 1975, was applicable. The Banks were nationalised by the Banks (Nationalisation) Act, 1974. Section 4 of this Act provides that the Federal Government or a Corporation wholly owned or controlled by the Federal Government shall have the exclusive right to establish a Bank. Subsection (1) of section 5 provides that the ownership, management and control of all banks shall stand transferred to, and vest in the Federal Government on the commencing day.
10. In the year 1974 by Ordinance XIX of 1974, sections 38-A to 38-I were added to the said Ordinance.
11. Under section 38-A, the Federal Government is competent to appoint a Wage Commission. Section 38-B provides that in fixing rates of wages and determining other terms and conditions of service of workers, the Wage Commission may take into consideration the cost of living, the prevalent rates of wages of comparable employments, the circumstances relating to the industry in different regions of the country and any other circumstances which the Wage Commission may seem relevant. Section 38-C provides that the decision of the Commission shall be published by the Federal Government within one month from its receipt. Under section 38-D the decision of the Wage Commission is to be deemed Award of the Full Bench of the Commission and the provisions of the said Ordinance applicable to such Award including the provisions of sections 51 and 55, so far as may be and with the necessary modifications, shall apply to the decision of Wage Commission. Section 38-G provides that the decision of the Wage Commission shall be binding on all employees 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. Under section 38-I of the said Ordinance, the provisions of sections 38-A, 38-B, 38-C, 38-D, 38-E, 38-F, 38-G and 38-H shall have the effect notwithstanding anything inconsistent therewith contained in any other law or in terms of any award, agreement or contract of service whether made before or after coming into force of the Industrial Relations (Amendment)
12. Ordinance, 1974.
13. It is advantageous at this stage to have a glance on other provisions of the said Ordinance. Section 2(ii) defines 'Award' which means the determination by a Labour Court, Arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and including an interim award.
14. Clause (g) of section 22-A provides that NIRC shall deal with cases of unfair Labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions or either of them or person acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed and, to take, in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice.
15. Subsection (11) of section 22-F provides that save as provided in subsections (10a) and (12) no Registrar, Labour Court or Tribunal shall take any action or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission. Clause
(a) of subsection (3) of section 22-B provides that the Benches shall in relations to case 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 Labour Court.
16. As stated hereinabove, section 38-B provides that a decision of the Wage Commission published under section 38-C shall be deemed to be an award of the Full Bench of the National Industrial Relations Commission and the provisions of the said Ordinance applicable to such award including the provisions of sections 51 and 55 so far as may be and with the necessary modification shall apply to the decision of the Wage Commission. Expression 'notwithstanding' given in section 38-I has been interpreted by the Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 15as under: ---- "Let us now examine as to what exactly has been done by President's Order No.3 of 1973 and Article 269 of the permanent Constitution. The President's Order No.3 of the 1973 has merely added in the last but one line of clause (2) of Article 281 of the Interim Constitution after the words 'shall be deemed' the words 'notwithstanding any judgment of any Court and then in the last line after the words 'taken or done' added 'and shall not be called in question in any Court' and provided that the abovementioned two additions 'shall be deemed always to have been so inserted'. It will be noticed that no change has been made in the earlier provisions of this clause at all. What then is the result. Does the clause, as now amended, means anything more than this that the ouster of jurisdiction will operate with regard to those acts which under the earlier provisions 'shall be deemed, notwithstanding any judgment of any Court, to be and always to have been validly made'?
17. If so then obviously the ouster will not apply to any act, order proceeding or thing done which is not to be so deemed to have been validly made. The question, therefore, still remains as to what is to be deemed under the provisions of clause (2) to have been validly done, taken or made. The words 'notwithstanding any judgment of any Court' were, it appears, introduced to take away the effect of the decision of this Court in the case of Miss Asma Jilani under which these acts would have been invalid."
18. Thus, it is clear that, the expression 'notwithstanding' in section 38-I takes away the effect of any other law or any terms of any award, agreement or contract of service whether made before or after the A coming into force of the Industrial Relations (Amendment) Ordinance, 1974 if they are inconsistent with the provisions of sections 38-A to 38-H of the said Ordinance. In other words the award is to supersede all other laws or awards.
19. According to section 51 of the said Ordinance the money can be recovered under an award as arrears of land revenue. According to section 55 of the said Ordinance, whoever wilfully fails to implement any term of any award would be punished with imprisonment which may extend to one year or with a fine which may extend to Rs.500 or with both. Since in section 38-D, the award of the Wage Commission would H be an award of the Full Bench of the Commission and the provisions of the said Ordinance applicable to such award including sections 51 and 55 of the said Ordinance, therefore, the Wage Commission Award is an award within the meaning of I.R.O. And as such a right is enforceable under clause (a) of subsection (3) of section 22-B of the Ordinance.
20. The Wage Commission gave its first Award in 1975 which framed the Disciplinary Rules and in para. 258 page 157 of the Wage Commission Award it has been laid down as follows-- "The Commission has framed the disciplinary rules which are called Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975."
21. The third Wage Commission was constituted under subsection (1) of section 38-C of the said Ordinance. According to sub-clause (2) of section 38-C of the said Ordinance, the decision of the Wage Commission remains in operation for a period of three years or until it is modified or varied by a latter decision of the Wage Commission. Para. 153 of the third Award provides as under:- "A clarification has been sought as to whether or not the decisions of a Wage Commission which are not touched upon by the subsequent Wage Commission would continue to remain in force. It is clarified that the decisions of the Wage Commission shall continue to remain in force even after the period of three years, if such decisions are not modified or varied by the subsequent Wage Commission. "
22. Section 22-B of the said Ordinance deals with the Benches of the Commission. Clause (a) of subsection (3) indicates that the NIRC has the power to enforce an award. A bare perusal of clauses (a) and (b) of subsection (3) shows that the Benches of the Commission can perform such functions and exercise such power as are exercised by a Labour Court in the matter of 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. In the present case, the respondent No.3 has claimed that the order of his dismissal be set aside and he may be reinstated in service with full back benefits. The respondent No.3 could seek his redress from the C NIRC under clause (a) of subsection (3) of section 22-B referred to above as it was a case of individual grievance. The respondent No.2 had no jurisdiction to enforce any right allegedly guaranteed to the workers under paragraph 258 of the decision of the Wage Commission under section 38-D of the Ordinance.
23. It may be noticed that right to move the Labour Court has been conferred on a worker in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being, in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within three months of the day on which cause of such grievance arises but it is evident from the language used in the section that worker can move the Labour Court only for the enforcement of any right guaranteed or secured to him by or under any law or any award or settlement. It may be noticed that section 2(ii) of the said Ordinance defines 'Award' which means the determination by a Labour Court. Arbitrator or Appellate Tribunal of any industrial dispute or may matter relating thereto and includes an interim award. A bare perusal of section 2(ii) shows that the word 'Award' states of three awards, the award given by Labour Court, an Arbitrator or Appellate Tribunal. It cannot be stretched to the decision of the Wage Commission as the term 'any award' in section 25-A is restricted only to the term defined in section 2(ii). In this D view, we are of the opinion that the decision of the Wage Commission cannot be enforced as an award under section 25-A. Respondent No.2 had no jurisdiction to enforce any right allegedly guaranteed to the workers of the nationalised banks and financial institutions because under section 38-D of the said Ordinance, the decision of the Wage Commission was an award of the Full Bench of the NIRC, which alone was competent to enforce it in view of the provision of subsection
(ii) of section 22-A.
24. The last contention of the learned counsel for the petitioner is that the Standing Orders Ordinance has been replaced by the Wage Commission Award. The learned counsel for the petitioners relies on the proviso to section 1(4) of the Standing Orders Ordinance. In support of his arguments he has placed reliance on the decision of Vice-President, National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1985 PLC 1053.
25. On the other hand Mr. Wasiullah Qureshi the learned counsel for the respondent No.3 has submitted that the rules framed by Wage Commission can be treated as part of award binding on workmen. In support of his submission, he has placed reliance on the case of United Bank Ltd., Sukkur v. Munir Ahmed and others 1984 PLC 276.
26. As stated earlier that under section 5 of the Banks (Nationalisation) Act, 1974 the ownership, management and control of all banks stands transferred to the Federal Government. Section 4 of the said Act provides that the Federal Government or a Corporation wholly owned or controlled by the Federal Government, shall have exclusive right to establish a bank. By a resolution, dated 25th May, 1974, the Government of Pakistan decided to appoint a Wage Commission for Banks and Financial Institutions. The Wage Commission noticed that disciplinary rules in the various banks/financial institutions were not only lacking in uniformity but they did not provide for any show-cause notice requiring the employees to explain their conduct. It decided to lay down uniform procedure in respect of disciplinary action and punishment to be followed by all banks and financial institutions. Para. 258 provides as under:- "The Rules shall be called Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975."
27. According to the Award, it was made applicable to all Banks and Financial Institutions from 1st January, 1975.
28. The submission of the learned counsel for the petitioners is that the petitioners being a nationalised bank, Standing Orders Ordinance, 1968 is not applicable. According to section 4 of the Banks (Nationalisation) Act, 1974, only the Federal Government or a Corporation wholly owned or controlled by the Federal Government had an exclusive right to establish a bank. This being so, it can be said that the Nationalised banks are being run, if not by the Federal Government directly, yet for all purposes under the authority of Federal Government. The first requirement for exempting the nationalised banks from the operation of the provision of the Standing Orders stand fulfilled in the instant case.
29. The contention of the learned counsel for the petitioners is that the second requirement for exempting the nationalised banks from the operation of the provision of the Standing Orders, namely, the existence of statutory rules of service conduct and discipline governing its employees is fulfilled in the instant case. On the other hand, the argument of the learned counsel for the respondent is that the second requirement is wanting in the instant case.
30. The report of the Wage Commission consists of several parts. Chapter I to XVI, comprising 301 pares., contain general discussion and other details relating to various matters and problems of the banks and financial institutions. Para. 302 of Chapter XVII gives summary of decisions of the Commission. There are 81 such decisions under this para. Against each decision reference is made to a para. In the earlier parts of the Report for reasons and other details in support of that decision.
31. Para. 302 of Chapter XVII of the Report is relevant and is reproduced below:-- "The Wage Commission for Banks and Financial Institutions have taken the following decisions which shall be binding on all employers and employees concerned in terms of section 38-G of the Industrial Relations Ordinance, 1969. These decisions shall come into effect from 1st January, 1975."
32. Para. 26 of the Second Wage Commission Award (published in Extraordinary Gazette of Pakistan on 24th July, 1978) confirmed the Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975. Para. 20 of the Second Wage Commission Award provides that the Commission's decisions could only be altered or replaced by a successor commission. Award of 1981 came into effect after the expiry of the second Award. The question whether the Wage Commission Award excluded the operation of the Ordinance has been controversial for some time. In the case of Vice-President, National Bank of Pakistan, Gujranwala Zone and another v. Punjab Labour Appellate Tribunal and 7 others 1985 PLC 1053 the view of Lahore High Court was that disciplinary rules framed by the Wage Commission occupied the position of statutory rules and as such rules are applicable to all banks and financial institutions. However, contrary view was expressed by a Bench of this Court, Circuit Sukkur in the case of United Bank Limited, Sukkur v. Munir Ahmad and 2 others 1984 PLC 276 holding that the banks, although run under the authority of the Federal Government, were for all intents and purposes, commercial establishment and that the rules framed by the Wage Commission constituted for banks and financial institutions, cannot be construed to be statutory rules.
33. An examination of sections 38 to 38-I indicates that nowhere the decision of the Wage Commission is either referred to or Rules have been given the effect of statutory rules. As provided in section 38-D, the decision of the Wage Commission is to be deemed to be an Award o: the Full Bench of the N.I.R.C. A bare reading of proviso to section 1(4) of the Standing Orders Ordinance would show that statutory rules of service, conduct or discipline have to be approved in exercise of powers conferred by a statute for its employees. The expression "Statutory Rules" means rules framed in exercise of powers conferred by a statute. In our view the same cannot be considered to be statutory rules for the purposes of the Standing Orders. We are of the view that second requirement of the Standing Order is wanting in the instant case. It is thus manifest that the petitioner banks have no rules of their own and the only course open is to deal with such cases under the Ordinance.
34. For the reasons it is clear that the respondent No. 2 has no jurisdiction in the case of bank employees covered by the Wage Commission Award. The orders, dated 15-10-1985 of the respondent No. 2 are, therefore, of no legal effect.
35. In the result, these petitions are allowed and it is hereby declared that the impugned orders were issued without-4awful authority and are of no legal effect. Consequently, respondents shall be restrained from giving effect to or acting upon the impugned orders. In the circumstances of these cases, there will be no order as to costs.
36. A. E.
37. Petition allowed