' Muhammad Akhtar, respondent No, 3, hereinafter referred to as the respondent, was working as Godown Keeper in the year 1977 in the Bank Square Branch Gujranwala of the Muslim Commercial Bank Limited, the petitioner herein. His services were terminated on 1-6-1977 on the ground that the godown for which he was appointed had been vacated. The respondent, thereafter, filed a Grievance Petition under section 25-A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance, challenging the vires of his termination and seeking reinstatement before the learned Punjab Labour Court No, 7, Gujranwala. The learned Labour Court, After recording the parties' evidence and after hearing them, directed the reinstatement of the respondent on 9-4-1978. He was also allowed hack benefits. The petitioner-Bank feeling aggrieved preferred an appeal before the learned Punjab Labour Appellate Tribunal. The said learned Tribunal vide the impugned judgment dated 28-2-1982, dismissed the appeal of the Bank.
2. Consequently, the petitioner-Bank filed the under consideration Constitutional petition before this Court assailing the afore-mentioned orders passed by the learned Labour Court and the learned Appellate Tribunal. It was mainly urged that the terms and conditions of service of the employees of the nationalized banks and other financial institutions were governed by the Award of the Wage Commission and that the said Award, by virtue of section 38-D of the 1989 Muslim Commercial Bank Ltd. v. Punjab Labour Appellate Tribunal 211 (Lehrasap Khan, J) Ordinance, was to be deemed as an Award of National Industrial Relations Commission and, therefore, it (Award) could only be enforced by the National Industrial Relations Commission, while the Labour Court and the Labour Appellate Tribunal lacked jurisdiction in the matter. This contention of the bank found favour with a learned Division Bench of this Court. The said learned Bench allowed the writ petition in the present case as also in many other cases in which reinstatements of the bank's employees by the learned Labour Court and the learned Labour Appellate Tribunal were challenged on the plea of want of jurisdiction. It was so done on 10-4-1985. The detailed judgment of the learned Division Bench was recorded in Writ Petition No, 719 of 1982. The respondent as also the affected employees in other writ petitions preferred appeals before the august Supreme Court of Pakistan.
The learned Supreme Court has set aside the judgments recorded by the learned Division Bench. It has been held by the Supreme Court of Pakistan that the Award of the Wage Commission is enforceable under section 25-A of the Ordinance and thus an otherwise view expressed by the High Court was not sustainable. The present writ petition as also the other connected writ petitions have been remanded to this Court for deciding the other issues involved in the cases.
3. So far as the present case is concerned, the other points which have been raised are: #TBS (i) #TBE that dismissed 'worker' cannot be regarded as 'workman' within the meaning of section 2 (xxviii) of the Ordinance and, therefore, has no locus standi to file application under section 25-A of the Ordinance;
(ii) that provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, are not applicable to the employees of the nationalized banks whose terms and conditions of service are governed by the Award of the Wage Commission; it has been canvassed that under paragraph 234 of First Award of Wage Commission, the respondent could claim only notice pay but he has no right to claim reinstatement under the said paragraph; and
(iii) that the order of the learned Labour Court and the learned Labour Appellate Tribunal, allowing back benefits to the respondent, was not a just and proper order.
4.(i) A close and considered analysis of the provisions of section 2(xxviii) and section 2 (xiii) of the Ordinance, respectively pertaining to the definition of the expression 'worker' or 'workman' and relating to tire definition of 'industrial dispute', seen in the perspective of the deeming clause of subsection (4) of section 25-A of the Ordinance leads to an irrefutable conclusion that a terminated/dismissed employee has the locus standi to take the grievance arising out of his dismissal/termination to the Labour Court, under section 25-A of the Ordinance as if it were an industrial dispute. The learned Supreme Court of Pakistan in its aforementioned judgment, which has been reported as Iftilchar Ahmad v. The President, National Bank of Pakistan and others PLD .1988 SC 53, has also observed that the right to approach the Labour Court was available to the dismissed/terminated employees of the nationalized banks under the Ordinance itself. It is, therefore, concluded that a dismissed or terminated employee of a bank has a locus standi to file an application under section 25-A of the Ordinance.
(ii) Regarding the second objection that in case of the petitioner, he could claim only notice pay under paragraph 234 of the First Award of Wage Commission and that provisions of Standing Orders Ordinance were not available to him, it may be observed that, as already stated, the Supreme Court of Pakistan has positively concluded that the Award of the Wage Commission, appointed for nationalized banks and other financial institutions, could be enforced under section 25-A of the Ordinance. It is, therefore, unnecessary to have recourse to the proposition that if provisions of Standing Orders Ordinance are available to the respondent or not. Admittedly, the services of the respondent were terminated on the ground that the godown for which he was appointed had since been vacated. It is a common ground between the parties that by the time the termination of the respondent was ordered, he had already completed the period of probation.
Under paragraph 234 of the Wage Commission Award, the services of an employee, who was no more a probationer, could only be terminated by paying him one month's pay in lieu of notice. In the present case, neither notice pay was given to the respondent nor he was served with any notice for termination. It has been urged on behalf of the bank that the respondent, in the circumstances, could only ask for the notice pay and not for reinstatement. The termination which is not in accordance with the Award of the Wage Commission, is illegal and merits to be set aside.
In Rai Kumar v. Union of India and others (1975 Supreme Court Cases (L&S) 1), it was held by the Supreme Court of India that while ordering termination of an employee, pay and allowances should be paid to him on the day the order of termination was served and that the delay caused in this behalf was fatal. Moreover, as already observed, the termination of the respondent from service was ordered on the pretext that the godown for which he was employed as Chowkidar, had since been vacated by the bank, but it has come on the record that before the learned Labour Court, it was conceded by the bank that, in fact, the godown was not vacated and that some other person was appointed as Chowkidar of the said godown. The order of termination of the respondent was thus not just and fair by any stretch of imagination.
(iii) The plea that back benefits were unjustifiably allowed to the respondent was neither raised before the Labour Appellate Tribunal nor has been urged in the under consideration writ petition.
This plea, for the first time, has been taken today during the course of arguments. Obviously, no new plea can be permitted to be raised in the Constitutional petition which was not the subject- matter of dispute between the parties before the lower Tribunals, whose judgments have been assailed through the present writ petition. There is nothing on the record to show that after his termination, the respondent remained gainfully employed elsewhere before his reinstatement was ordered by the Labour Court. In the absence of such material, it is to be presumed that he remained without any job. Since his termination has been held to be illegal, therefore, ordinarily, he is entitled to the back benefits. No exception can, therefore, be taken to the orders made in this behalf by the learned Labour Court and the learned Labour Appellate Tribunal.
5. For the foregoing conclusions, there is no merit in the under consideration writ petition which is accordingly dismissed. There shall, however, be no order as to costs.