' This appeal was heard along with Labour Appeal No, 35 of 1988, because both these matters involve similar points of law, therefore, same are being decided by a common judgment.
2. Facts leading to Labour Appeal No, 34 of 1988 are that on 5-5-1983 a Bank fraud was detected in Jinnah Road Branch National Bank of Pakistan, Quetta; Report was lodged with F.IA. During investigations respondent who was working as a clerk, in said Branch was found involved in the same. Bank authorities accordingly vide No, ZOQ-ADMN-PF: IGSR: ACCTT: dated 16-6-1983 suspended the respondent pending enquiry concerning defalcation in MA. Jinnah Road Branch, Quetta. Admittedly departmental enquiry was not conducted; however, on 6-11-1984 charge- sheet-cum show-cause notice, under National Bank of Pakistan (Staff) Service Rules, 1980 (hereinafter referred as "Bank Service Rules") was served on respondent to which a detailed reply was submitted by him on 27-11-1984. In the meantime Bank fraud case pending on the criminal side was withdrawn for trial by Military Court No, 6 where ultimately on 4-3-1985 respondent was convicted to undergo imprisonment. In pursuance thereof Notice No, CU/Admn/Q/721/1564, dated 25-4-1985 was served on respondent for showing cause as to why he may not be dismissed from Bank service from the date of his suspension. Respondent gave detailed written explanation on 20- 5-1985 which was not accepted and by means of order dated 16-6-1985 he was ordered to be dismissed. Subsequently on 12-9-1985 respondent preferred an appeal before Executive Board of National Bank of Pakistan which was, rejected on 16-4-1986. It is the case of appellant that decision of appeal was communicated to respondent by ordinary post whereas respondent has consistently maintained that no such intimation was ever conveyed to him by Bank authorities. Any how, on 30-3-1987 respondent served the appellant with a grievance notice under section 25-A of I.R.O. 1969 and later towards 21-5-1987 filed grievance petition before Presiding Officer Labour Court-I, Baluchistan. Respondent examined 3 witnesses namely (i) Shamsuddin, (ii) Muhammad Gul, (iii) Mirza Rafiq Baig to substantiate, his grievance. Whereas National Bank examined 2 witnesses namely Parmoon Zahid and attorney Abdul Ghaffar in rebuttal. Trial Court accepted the claim of respondent vide judgment dated 31-7-1988. Labour Appeal No, 26 of 1988 challenging aforesaid judgment was partly accepted on 14-9-1988, and case was remanded after framing five issues for disposal afresh. Learned Presiding Officer, Labour Court-I, on considering facts and law again granted, grievance petition vide order dated 31-10-1988, Appeal No, 34 of 1988. Is directed against the same.
3. Facts relating to Appeal No, 35 of 1988 are that, respondent Muhammad Bakhsh, who in May, 1983 was working as Cashier, National Bank of Pakistan M.A. Jinnah Road Branch, Quetta was also found concerned with Bank fraud case. Bank authorities consequently suspended the respondent on 21- 5-1983 pending departmental enquiry. Admittedly no enquiry was conducted in the matter. Later charge-sheet, pointing out serious violations in Banking practice by authorized issuing vouchers of huge amounts was sent to respondent on 16-11-1984, which was duly replied by him. In the mean time criminal proceedings, concerning Bank fraud were referred to Special Military Court-6 wherein respondent was also convicted on 4-3-1985. Thereafter, notice for showing cause as to why respondent (Muhammad Bakhsh) be not dismissed was issued to him on 25-4-1984. Respondent gave detailed reply on 20-5-1985. Bank authorities did not accept explanation of respondent and ordered his dismissal from service on 16-6-1985 with effect from date of suspension. Feeling aggrieved respondent on 20-8-1985 submitted an appeal to President National Bank of Pakistan seeking re-instatement in service. A reminder was also sent on 26-21986. It appears that aforementioned appeal was rejected on 16-4-1986. According to appellant result of appeal was communicated to respondent by ordinary post, whereas respondent consistently maintained that no intimation was ever received by him. However, grievance notice was sent to appellant on 12- 11987, and thereafter, grievance petition under section 25-A, I.R.O. Was filed on 28-3-1988, before Presiding Officer Labour Court-I, Quetta seeking setting aside of his dismissal. Parties adduced evidence during trial of the case. Learned Presiding Officer, Labour Court by means of order dated 31-7-1988 granted claim of respondent. Appellant challenged the same before Labour Appellate Tribunal in Appeal No, 23 of 1988 which was partly accepted on 14-9-1988 and case was remanded to trial Court after framing issues for re-determination of legal and factual aspects. Learned Presiding Officer, Labour Court again allowed the claim of respondent vide order dated 31-10-1988.
Labour Appeal No, 35 of 1988 challenges last mentioned decision of Labour Court.
' Mr. Tariq Mahmood, learned counsel for appellant (National Bank) strenuously criticised impugned judgments and raised following points:
(i) Grievance petition filed by respondent before Labour Court was barred by time, which aspect has not been correctly appreciated by trial Court.
(ii) Presiding Officer, Labour Court seriously erred in observing that West Pakistan Industrial and Commercial (Employment) Standing Orders Ordinance, 1968 (hereinafter referred to as 'Standing Orders') is applicable to the employees of National Bank whereas factually their service is regulated by National Bank of Pakistan (Staff) Service Rules, 1980 (hereinafter referred as 'Bank Service Rules').
(iii) Grievance petition under section 25-A of I.R.O. Could be instituted only on infringement of right guaranteed to appellant under law or award. Since conviction constituted valid proof of accusations, determined by competent Court of law, about involvement of respondent in Bank fraud; therefore, ex facie grievance petition was not competent.
(iv) On conviction by Court of competent jurisOiction, specially in the matter of 'Bank fraud', no enquiry was necessary. Objection to the contrary is unwarranted.
(v) Suspension of respondent is regulated by rule 3 paragraph 258 of second Wage Commission Award, read with para. 38 of 'Bank Service Rules', therefore, there is no error or illegality in that behalf.
' Whereas on the other hand Mr. Ayyaz Zahoor, learned counsel for respondent, emphatically opposing the appeal raised following objections;
(i) National Bank of Pakistan (Staff) Service Rules, 1980 do not have statutory sanction, therefore, same are not applicable.
(ii) In the absence of statutory service rules; provisions of 'Standing Orders' apply to the employees of National Bank. Consequently in the instant case Bank ought to have adopted proper procedure of enquiry contemplated by section 15(4) of 'Standing Orders'. Proceedings drawn against respondent, resulting in his dismissal from service are, therefore, illegal.
(iii) Conviction does not automatically, cause termination of service rights. Proper enquiry as prescribed was necessary which has not been conducted.
(iv) Since, admittedly no departmental inquiry was held, therefore, suspension even under 'Bank Service Rules', was patently illegal, therefore, deductions of half emoluments during alleged suspension period was without legal sanction.
4. I have gone through available record, and considered arguments advanced by learned counsel for parties.
5. First objection concerns question of limitation. It is the stand of appellant that decision of Appellate Authority of National Bank dated 16-4-1986 was sent to respondents through ordinary post. P.W. Abdul Ghaffar and Parmoon Zahid have been examined in this behalf. They merely mention about dispatch of letter by ordinary post. There is, however, nothing to indicate that the decision of. The appellate authority was actually communicated to respondents. Therefore, in the absence of any proof of service, the consistent categorical stand of respondents, appears to be correct. Even otherwise it is not believable that decision which has important bearing pertaining to service rights of an employee would be despatched by the Bank through ordinary post. In the circumstances I am inclined A to observe that respondent presumably on coming to know about rejection of their appeal adopted necessary measures for redressing their grievance. Thus, even if grievance petition suffers from defect of limitation, such delay is obviously condonable. Objection about limitation accordingly must fail.
6. Next question, primarily relates to applicability of 'Bank Service Rules' or alternately provisions of 'Standing Orders' to the employees of National Bank of Pakistan and its effect. It is noticed that whenever dispute concerning service rights of Bank employees is brought before Court of law, the question about `status' and position of "Wage Commission Award", applicability of 'Bank Service Rules", viz-a-viz. "Standing Orders" and its effect is always stretched by each side relying upon various observations appearing in some of the reported judgments in this behalf.
7. It may be seen that section 38-A of I.R.O. Envisages constitution of Wage Commission by the Federal Government, for fixing wages and determining terms and conditions of Bank workers. The award of Wage Commission by virtue of section 38(c), I.R.O. Remains operative for 3 years unless modified or varied earlier. It binds employer and employees as prescribed under section 38-G, I.R.O. So far five Awards have been announced.
(i) First Wage Commission Award 1974-75 published in official Gazette vide Notification No, S.R.O.
1384(1)74, dated 1-11-1974.
Second Wage Commission Award published in the Gazette of Pakistan Extraordinary vide No, S.R.O.
930(1)/78, dated 24th July, 1978 at page 1575.
(iii) Third Wage Commission Award published in the Gazette of Pakistan Extraordinary vide Notification No, S.R.O. 1377(1)/81 on 27th December, 1981 at page 3273.
(iv) Fourth Wage Commission Award published on 27th August, 1984 vide Notification No, S.R.O.
741(1)/84 at page 1517.
(v) Fifth Wage Commission Award. Published on 23rd June, 1978 vide Notification No, S.R.O. 516(1)/87 at page 755.
Para. 258 of First Wage Commission Award suggests uniform pattern of efficiency and discipline Rules, manner of suspension and holding of inquiry, imposition of penalty for the financial institutions. Aforesaid provisions have been protected by subsequent Wage Commission Awards and have binding effect till Statutory Rules are framed by respective financial institutions. Appellant Bank claims that since rules governing service of employees of National Bank have been framed by the Executive Board in accordance with bye-laws read with section 11(4) of the Banks (Nationalisations) Act, 1974. Therefore, procedure of disciplinary action provided in Chapter III.
Paras. 37, 38 and 39 of National Bank of Pakistan (Staff) Service Rules, 1980 being statutory in nature have binding effect and exclude applicability of 'Standing Orders'. At this stage it would be appropriate to refer some of the reported judgments dealing with above aspects. (1) National Bank of Pakistan v. Nizamuddin Mehr 1980 PLC 1118. In this judgment Labour Appellate Tribunal Sind observed that Award of Wage Commission 1974-75 cannot be equated with statutory rules in relation to service rights of Bank Employees for the purpose of Standing Orders. It was further held that in the absence of statutory rules, of service, the Bank Employees would be regulated by 'Standing Orders'. (2) National Bank of Pakistan v. Muhammad Javed 1982 PLC 380. It was ruled that 'Standing Orders' are not applicable when statutory rules of service exist. Operative portion is reproduced below:-- "Further, I am of the view that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is not applicable to the Employees of the National Bank of Pakistan as the Bank is carried on by or under the authority of the Federal Government and it has got its own statutory rules of service, conduct and discipline governing its own employees. Even under his appointment letter dated 17th January, 1973 the services of the respondent were to be governed by the National Bank of Pakistan (Staff) Service Rules, 1953, and consequently bound by the said rules.
The respondent has based his claim only on the Standing Order 2-A of W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which is not applicable to the present case and he has not alleged violation of any other statute or rules, etc. Affecting his rights. The result is that the petition under section 25-A of the Industrial Relations Ordinance, 1969 of the respondent was not maintainable. Consequently this appeal is accepted, the impugned decision of the Labour Court is set aside and the grievance petition of the respondent filed under section 25-A of the Industrial Relations Ordinance, 1969 is dismissed."
(3) Altaf Ahmed Sheikh v. National Bank of Pakistan 1982 PLC 683. Paras. 8 and 9 at page 687 are reproduced below:- ' Para. (8).
8. In compliance with the suggestion of the Second Wage Commission Award, the National Bank of Pakistan (Staff) Service Rules, 1980 were framed in supersession of the Rules 1973. Sub-rule (2) of rule 1 of the said Rules provides that they shall be deemed to have taken effect from 1st January, 1980, but cases already decided before the commencement of the said rules, shall not be reopened if the decision taken is in conflict with any of the provisions of the present rules. These Rules admittedly have not been made under the rule-making powers contained in section 32 of the National Bank of Pakistan Ordinance, 1949. No reference to the said Ordinance has been made in the Rules. Furthermore, the previous approval of the Federal Government to the making of these rules has not been obtained, as required by section 32 of Ordinance XIX of 1949. It was, therefore, frankly conceded by Mr. Mamoon Kazi that the Staff Rules of 1980, cannot be considered to be statutory rules but were framed by the bank and its Board in pursuance of the Award of the Second Wage Commission.
9. There would appear to be also a major objection to the application of the Staff Rules of the Bank of 1980 to the case of the appellant. As already indicated the appellant was charged with and penalized for acts said to have been committed by him during the period from February, 1976 to February, 1977, much before the Rules of 1980 came into force. It was contended by Mr. Mamoon Qazi that as the 1980 rules were procedural in nature they should be deemed to have retrospectivity effect and be applicable to undecided cases of a period prior to their coming into force. In the first place the principle is that it is only the legislature that can give retrospectivity to its laws, and subordinate legislation cannot be made with retrospective effect unless this power is expressly conferred by the Statute under which such subordinate legislation is framed
(4) Ghtilam Ali v. National Bank of Pakistan and others 1983 PLC 13.
"The services of the appellant, who was employed as Driver in the Bank Square Branch of the National Bank of Pakistan, Larkana, were terminated on 13th September, 1980, on the ground of unauthorized absence. He challenged the termination of his services through a grievance petition filed before learned VIIth Labour Court which has dismissed the same vide its order, dated 4th November, 1981 on the ground that Labour Courts have no jurisdiction in respect of employees of Banks. This issue has been examined at some length by this Tribunal in the case of Altaf Ahmed Shaikh v. National Bank of Pakistan, decided on 28th March, 1982. In that case, it has been held that the National Bank of Pakistan (Staff) Service Rules, 1980 have prospective and not retrospective effect and that further as the said rules are not statutory rules, but have been framed in consequence of the Award of the Second Wage Commission for Banks and Financial Institutions, they do not take away or exclude the jurisdiction of the Labour Courts in respect of the employees of National Bank of Pakistan."
' United Bank v. Munir Ahmed and others 1984 PLC 276: "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.O. In order to enforce his right conferred under Ordinance, 1968."
(6) Vice-President National Bank of Pakistan Gujranwala Zone and another v. Punjab Labour Appellate Tribunal 1985 PLC 1053: "Para-10. It was argued that by asking the Wage Commission to frame the service rules, the legislature has abdicated from its function. The rules are thus ultra vires of the Constitution. There is, however, no force in this argument. The legislature now leaves matters of detailed regulations more and more to the executive. The legislature in the present case, therefore, has not made any excessive delegation of its authority, by asking a subordinate statutory authority to frame service rules."
11. The Punjab Labour Appellate Tribunal was justified in holding that the ' Board and it is not denied that the prior approval of the Central Government was accorded.
5. This Court in the Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 referring to earlier pronouncement of the Court restated the law and observed that 'the case of an employee who was governed by Statutory Rules stood on a different pedestal from the case of an employee whose conditions of service were regulated merely by the instructions issued by the employing organisation for its own internal use'. It was reiterated that it is well-settled that where statutory rules govern the service conditions of an employee, then the pleasure of the master stands surrendered to the extent that the matter is covered by the relevant rules."
Thus, considering preponderant view in aforequoted reports, I am inclined to observe that provisions of Wage Commission Award cannot be equated with statutory rules. Now National Bank of Pakistan (Staff) Service Rules, 1980 are obviously statutory in character hence binding on the employees of said institution. Thus, on the existence of statutory service rules', provisions of `Standing Orders' would not apply to the employees of National Bank. However, in the light of authoritative pronouncement in case Iftikhar Ahmed and others v. President, National Bank of Pakistan PLD 1988 S 53, Mr. Tariq Mahmood learned counsel for appellant candidly conceded that, Labour Court has jurisdiction to examine grievance of respondents within the four corners of "Bank Service Rules".
' As regards suspension of respondents, it may be seen that M/s. Ilyas Javed and Muhammad Bakhsh were placed under suspension on 21-5-1983 and 16-6-1983 respectively for purpose of conducting departmental enquiry against them. Admittedly departmental enquiry was not conducted. Learned counsel for appellant pointed out that powers for suspension were contained in para. 38 of `Bank Service Rules, 1980'. Same is, however, reproduced below for ready reference.
"38. Powers of suspension.--The competent authority may, if it thinks fit, suspend the employee pending enquiry, by order in writing. While under suspension the employee shalibe entitled to one- half of his basic pay as subsistence grant in addition to the House Rent Allowance/Rent Ceiling which he may be in receipt of at the time of suspension and the usual medical facilities. During suspension the employee shall not leave headquarters without the permission of the competent authority."
Perusal of aforementioned provision clearly indicates that suspension could be ordered, pending inquiry. The only ground mentioned in the order for placing respondents under suspension is also for conducting enquiry. Since admittedly no enquiry was conducted, therefore, powers regarding suspension of respondents were illegally exercised by the Appellant. Thus, suspension of respondents on account of peculiar circumstances is declared to be without lawful authority.
Consequently respondents shall be entitled to full benefits during the period they remained under suspension.
' Last argument relates to validity of removal of respondents from service merely on the basis of their conviction recorded by Criminal Courts without holding any enquiry. In this behalf it may be seen that para. 37 of Bank Service Rules, authorizes competent authority to dispense with inquiry proceedings. Undisputedly conviction of respondents pertains to their involvement in 'Bank Fraud'.
Therefore, their re-instatement to the service cannot be rectified, in view of observations in following reports:-
(i) Muhammad Rafiq v. State 1982 SCMR 1047.
(ii) Abdul Ghaffar v. District Manager, Karachi Transport Corporation 1981 PLC 186.
(iii) Dost All v. National Bank of Pakistan, Karachi 1987 PLC 800.
' It may be clarified that conviction of an employee for offences unconnected with fraud in the financial institutions and otherwise not involving moral turpitude is quite distinguishable. In the circumstances reliance of respondents on the observation in case of (i) Ghulam Muhammad v.
Wapda 1984 PLC 745, Universal Oil and Vegetable Ghee Mills Ltd. v. Jaffar Khan 1984 PLC 424 and Ashiq Hussain v. Allied Bank of Pakistan Ltd. And another 1988 PLC 966; is inapt.
' For the foregoing reasons I am inclined to set aside the impugned order and record my conclusions as under:-
(i) Labour Court in view of case Iftikhar Ahmed and others v. President National Bank of Pakistan and others PLD 1988 SC 53 has jurisdiction to adjudicate upon the matter and grievance petition filed by respondents was maintainable.
(ii) National Bank of Pakistan (Staff) Service Rules, 1980 are of statutory character, therefore, same are applicable to the employees of said Bank, consequently provisions of W.P. Industrial Relations and Commercial (Employment) Standing Orders Ordinance, 1968, would not apply.
(iii) Order regarding suspension of respondents was passed disregarding requirements of section 38 of National Bank (Staff) Service Rules. Accordingly same is declared to be unlawful, consequently respondent shall be entitled to full emoluments for the period they remained under suspension.
(iv) Respondents having been convicted in connection with 'Bank fraud case', are not entitled to re- instatement. The order of respondents' dismissal from service shall, therefore, be operative from the date of its issue.
' Appeal is accordingly partly accepted as above. Parties are left to bear their own costs.
' This appeal was decided by short order dated 30th November, 1988, here are reasons for the same.