DECISION (Rtd.) Ali Nawaz fiudhani, J.-This is an apneal filed by the appellant against the impugned order, dated 19-5-1985, passed by the bind Labour Court No. VI' Hyderabad, who had dismissed the grievance petition under section 25-A, IRO, 1969.
2, Brief facts of the case are that the appellant was a permanent workman of the respondent Railways employed as Welfare Mistry in C and W Shop of Pakistan Railways, Hyderabad and he was retired from service with effect from 7-4-1983 on attaining the age of superanuation. According to him, at the time of bis retirement his age was only 58 years and in support of this he submitted a Birth Certificate, alleged to have been issued by the Registrar, Birth and Death (Ajmer) India, but, it was not accepted by the respondent Railways. Being aggrieved, the appellant submitted his grievance petition under section 25-A, IRO 1969 on 25-8-1983.
3. The case of the respondent Railways was that the appellant was rightly retired from service on his attaining the superanuation age of 60 years as per records. He was appointed as Coolie on 14- 4-1941 in the BB & C I Railway (Ajmer) India at the age of 18 years. In i94), he opted for Pakistan and so his services were also transferred to Pakistan. According to service record of the appellant received from India, tha date of birth as mentioned therein was 8-4-1923 and at the time of appointment, the appellant was 18 years and 6 days old, to which entries, the appellant had never challenged during his entire tenure of employment with the respondent Railways. Further, it was the case of the respondent Railways that if the data of 8-4-1925, as mentionad in the Birth Certificate, purported to have been issued by the Registrar, Birth and Death (Ajmer) India, and claimed to have been secured by the appellant himself from India, is considered as correct, then, the age of the appellant at the time of his joining the Railways Deparment must have been 16 years, which age is not permitted for employment in any Government Department. That'an appeal filed by the appellant before the respondent Railways against his alleged premature retirement was voluntarily withdrawn by himself, therefore, subsequent grievance petition was not maintainable. Finally, it was the case of the respondent Railways that his grievance petition filed before the Labour Court on 25-8-1983, impugneng the order of his retirement, dated 7-4-1983, was hopelessly time-barred and liable to be dismissed.
4. I have gone through the record and proceedings of the case and also the affidavits-in-evidence, filed by both the parties as they were duly cross examined.
5. I have also heard Mr. Wasiullah Qureshi, the learned Advocate for the appellant and Mr. M.
Ishaque, the learned Counsel on behalf of the respondent Railways, Mr Abbasi has contended that the retirement of the appellant was based on the Service Record prepared and maintained by Indian Railways and so Pakistan Railways acted on such record because its correctness and authoticty was never questioned by the appellant as the record in question was prepared in the year 1941 and the appellant was transferred to Pakistan in the year 1947 and he himself came to know about the date of his retirement on 2-12-i 982, but still, he never protested against the reeorded date of birth, therefore, neither he can question the date of birth at the belated stage nor he can maintain his grievance petition as it is hoplessly time-barred. Further it is argued by Mr. Abbasi that the appellant had never pleaded any mala fid* against any official of the Railways, so, the order of retirement of the appellant was quite valid and legal, in support of his contentions, Mr. Abbasi has relied upan a number of authorities as reported in PLD 1969 Peshawar-335. 1984 PLC page 1232. 1283 PLC 33s, 635 and 968. As well as 19t>4 PLC (Labour) at page 449. Mr. Abbasi also referred to me certain documents, brought on record to establish the correct, date of birth of the appellant as on 8-4-1923. I am, therefore, satisfied with the contentions of Mr. Abbasi, the learned Advocate for the respondent Railways. On the other hand, Mr. Wasiullah Qureshi has relied only upon a Birth Certificate alleged to have been issued by the Registrar, Birth and Death (Ajmer) India.
This is not an authenticated document as it was secured by the appellant himself directly from India without attestation or endorsement of the High Commissioner/Embassador for Pakistan in India or any other competent authority of the Ambassy in India. Mr. Wasiullah Qureshi the learned counsel for the appellant has nothing to rebut the contentions of Mr. Abbasi, therefore, he has no case. I, therefore, hold that the date of birth of the appellant as entered into the Service Record as 8-4*1923 was correct and the appellant was rightly retired by the respondent Railways on attaining the age of superannuation i. e. 60 years, hence he is not entitled to maintain his grievance petition under section 25-A, IRO 1969. Which is hereby dismissed.
6. For the reasons stated by me above, I maintain the impugned order and would dismiss this appeal.
It.L.R 1987 Labour and Service Cases 123 [Karachi] Present: (ttetd.) Ali Na*ax Budhani, J.
NATIONAL BANK OF PAKISTAN versus ASAD AH Appeal No KAR-40S of 85 decided on 6th October, 1986, Industrial Relations Ordinance (XXIII of 1969) ---- S. 25-A read with National Bank Staff Rule* framed by Wages Commission-Maintainability of Grievance peittion by an employee of the Bank-Held s National Bank run under the authority of the Federal Government, such disciplinary rules framed by Wages Commission for Banks and Financial Institutions eannot be treated as statutory rules and such establishment like, National Bank of Pakistan, would not be out ot ambit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968-Such Employees were entitled to invoke S. 25-A IRO.---- (Para 6)
1984 PLC 276 and 1>80 PLC 1118 Ref.
(b) Industrial Relations Ordinance (XXIII of 1969) --S, 25-A-Grievance Notice-Period of limitation-Date of Commencement-Where the departmental appeals are provided in such cases the Limitation commence from the date of decision on appeal.
(Para. 6)
1980 PLC 106, NLR 1978 286, 1981 PLC 184, 1984 PLC 632, 1973 PLC 355 and 1985 PLC 700 Ref.
(c) Industrial Relations Ordinance (XXIII of 1969) --Domestic Enquiry-Frssn Charge Sheet -Fresh charge sheet cannot be served on the workman beyond one month's time of the alleged misconduct. (Para. 6)
NLR 1981 (TD) 213, 1980 PLC 136 ; 1978 NLR (Labour) 433 1977 PLJ 238, 1977 PLC 708 and 1978 PLC 480 Ref.
(d) Industrial Relations Ordinance (XXIII of 1969) --Domestic Enquiry - Composite questions put to respondent in a questienaire which were duly replied by him without admitting anything and without implicating himself-No witness examined by the Enquiry Officer to prove the charge-Held; The enquiry proceedings being irregular and its result* being without any valid foundations, the same could not be sustained. (Para. 6)
1984 PLC 12*9, 1984 PLC 1166 and 1973 PLC Page 24 Ref.
Far the Respondent: S, P. Lodhi, Advocate.
For the Appellant: Samiullah Khan, Advocate.
Date of hearing : 6th October, 1986.
DECISION (Retd.) Ali Nawaz Budhani, J. Thii is an appeal filed by National Bank of Pakistan against the impugned order, dated 25-11-1985, passed by the Sind Labour Court No. V, Karachi, who had allowed the grievance petition ef the respondent, under section 25-A. IRO 1969,
2. Briefly stated the faete of the case are that respondent, Asad Ali son of Moinullah was a permanent worker/driver of the appellant Bank and he was involved in some corruption case alongwith one Rehman Baig, the then Manager of National Bank, Mahmoedabad Branch, Karachi and both of them were challenged, tried and convicted by the Special Judge, Anti-Co ruption, Karachi, vide his judgment, dated 19-8-i978. The respondent Asad Ali preferred appeal which was still pending before the High Court when he was served with charge-sheet dated 3M-198l by the appellant Bank alleging therein that he, by opening a fictitious account at Mahmoodabad Branch, obtained wrongful, gain for himself and caused wrongful loss to the Bank. Besides this, the respondent was also reminded of his previous misconduct and punishment. The respondent submitted his reply to this charge-sheet on 17-12-19*1 contsnding therein that the main allegation was till sub-judice before the High Court and it would amount to double jcopary if any action was taken by the appellant Bank. But, after lapse of about one year i.e. On 13-11-1982, while the said Criminal appeal was still pending before the High Court, the respondent was served with another charge-sheet in whieh almost the same allegations, as specified in the first charge-sheet ; .Dated 31-1-1981, wire repeated. To this charge-sheet a]so, the respondent submitted some-what similar reply which was found un-satisfactory by the appellant Bank, therefore, a domestic enquiry was held resulting in the dismissal of the respondent, tide order, dated 24-5-1983. Thereafter the respondent preferred a departmental appeal which remained un-replied till 5-3-198*. Being dis- satisfied With the attitude of the appellant Bank, the respondent served a grievance notice on the appellant Bank in which he also informed the appellant Bank that he bad been acquitted by the High Court in criminal case and his conviction was set aside by the High Court, vide Judgment, dated 4-12-1983 in Criminal Appeal No. 197 of 1978 fully appreciating the facts of the case and giving the benefit of doubt to the respondent. As, the appellant Bank did not reply even to this grievance notice, therefore, the respondent submitted his grievance petition under section 25 A, IRO 1969 before the learned Labour Couit, who ordered for his reinstatement in service with full back benefits. Further, the ease of the respondent was that he was an active worker of a trade union holding the post of Vice President therein, therefore at the behest of the rival union, he was victimized by the appellant Bank.
3. The appellant Bank in their reply statement before the learned Labour Court had denied the allegations of malice or any motivation and had contended that the respondent had committed obvious fraud and forgery with their Mahmoodabad Branch in connivance with the Branch Manager, namely, M. A. Rehman was and both these persons were tried and convicted by the Special Judge Anti-Corruption. The appellant Bank's case was that they had replied about rejection of the appeal, vide latter dated 28/30-8-1983 and also to his Advocate on 23-10-1983, therefore, the service of another grievance notice, dated 5-3-1984 by the respondent upon the appellant Bank was uncalled for and needed no reply. The case of the appellant Bank was that the respondent was given full opportunity to defend him in the domestic enquiry as there was no bar in conducting the enquiry during the pendency of the proceedings before the High Court. Lastly the base of the appellant bank was that the grievance petition of the respondeat under section 25-A, IRO 1969 was also not maintainable, being barred by time, hence, liable to be dismissed.
4. Both the parties filed their respective affidavits-in-evidence and they were duly cross examined.
The learned Labour Court had framed five Issues in the case and they allowed the grievance petition of the respondent* hence this appeal.
5. I have heard Mr. Sanaullah Khan, the learned representative of the appellant Bank and Mr. S. P.
Lodhi, the learned representative on behalf of the respondent and have carefully perused the record and proceedings of the case. It was argued by Mr. Sanaullah Khan that the learned Labour Court did not ; ppreriate correctly the legal position taken by the appellantBank and the facts brought on record and it did not take into account the latest decision given by the superior Court to the effect that the Labour Court has no jurisdiction to adjudicate any case brought before it under section 25-A, IRO by a Bank employee covered by the Wage Commission Awards and thus it acted beyond its jurisdiction and as such the impugned order passed on 25-11-1 985 was without any force of Law. Mr. Sanaullah Khan has further contended that the Labour Court should not have taken into account the Judgment of the High Court, dated 4-12-1983 since the same had contained the conclusion merely on technical ground. He contended that it is a well established principle that no case should be merely thrown out on a technical gr and as all the rules of procedure are sub- servient to the end of justice unless a technical knock-out is caused by a mandatory provision of Law, therefore, the reference made by the Labour Court of the Judgment, dated 4-12-1983 given by the High Court should not have come into play in the grievance petition of the respondent. Lastly, it was pleaded by Mr. Samiullah Khan that the point of domestic enquiry be re-opened. I see no force in the arguments of Mr. Samiullah Khan.
6. On the other hand, Mr. S. P. Lodhi for the respondent has contended that the National Bank Staff Rules framed by the Bank have no statutory force and the same cannot be treated at par with the provisions of Standing Orders Ordinance. In this behalf he referred to me a case reported in 1984 PLC at page 276, wherein it was held that since no statutory rules in terms of Section 1 (4) of the Ordinance were existing in relation to the Bank employees, such employees were entitled to invoke Section 25-A, IRO 1969 in order to enforce their rights conferred by the said Ordinance. In another case, reported in 1980 PLc at page 1118, it was held that National Bank run under the authority of the Federal Government, such disciplinary rules framed by Wages Commission for Banks and Financial Institutions cannot be treated as statutory rules and thar such establishment like, National Bank of Pakistan, would not be out of ambit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinadce, 1968 I therefore, hold as such. Mr. S. P. Lodhi further argued that tha normal period of limitation as prescribed by section 25-A, I R O 1969 stands altered where the departmental appeals are provided and in such cases the limitation commences from the date of decision on appeal. In this behalf, Mr, Lodhi has relied upon a number of authorities, reported in 1980 P.L.e. Page 106, N L R1978 at pege 286, 1921 P. L. C. At page 184, 1984 P, L. C. At page 632, 1973 P. L.
C. At page 355 and the latest authority reported in 1985 P.L.C, at page 700. In view f the facts and circumstances of the present case and the above cited authorities, I bold the grievance petition of the respondent was within time. It was further pleaded by Mr. S, P. Lodhi that the respondent was first charge-sheeted on 31-12-1981 and till 7*11-1982, no auction was taken against the reipondent, but another charge-sheet dated 7-11-1982 was issued to the respondent, which action of the appellant Bank was not lawful, in this context, Mr. S. P. Lodhi has relied upon a series of Case Laws as reported in NLR 1981 (T D) page 213, I9fc0 PLC at page 136, 1978 NLR (Labour) at page 433, 1977 PLJ at page 238, 1977 PLC at page 708 and 1978 P. L. C. At page 480. In all these authorities it was held that fresh charge sheet could not be served on the workman beyond one month's time of the alleged misconduct, I, would, therefore, agree with the contention of Mr. S. P. Lodhi in this behalf. Lastly, it was contended by Mr. S, P Lodhi for the respondent that the domestic enquiry was not proper and in accordance with the prescribed procedure and Law, as admitted a questionaire was supplied to the respondent in which various entrieate and composite questions were put to him which were duly replied by the respondent without admitting anything and without implicating himself. In this connection, Mr. Lodhi has referred to me to the confession of the enquiry officer in his cross examination before the Labour Court that he did not examine any other witness to prove such charges against the respondent and has he did not conduct the enquiry according to the previsions of Standing Orders Ordinance, and further that he did not propose any punishment to be awarded to the respondent. In support of his arguments, Mr. S.P.
Lodhi has placed reliance on a number of authorities, reported in 1984 PLC, at page 1219, 1984 PLC at page 1166 and 1973 PLC at page 24. Thus, I hold the enquiry proceedings being irregular and its results being without any valid foundations, the same could not be sustained.
7. For the reasons stated by me above, I would maintain the impugned order and dismiss the present appeal. The respondent is directed to be reinstated in service forthwith with the only modification that the respondent be paid thirty percent (30%) back benefits. Further, I direct that the total thirty percent (30%) back benefits be paid to the respondent from the amount, already deposited by the appellant Bank in this Tribunal.