1. ABDUL RAHIM KAZI, J.--By this common judgment we intend to dispose of the above-said eight petitions as the only point urged by the learned counsel for the petitioner pertains to the jurisdiction of the Labour Court. He has argued that the Labour Court had no jurisdiction to entertain the present petitions although the learned counsel appearing for the petitioner Bank had conceded to the jurisdiction of the Labour Court as well as the Labour Appellate Tribunal. Mr. Hidayatullah Abbasi, the learned counsel for the petitioner, has placed reliance on the cases of National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832 and Burhanuddin Shaikh and 9 others v. National Bank of Pakistan and 58 others (1985 CLC 2003) and argued that since it has been held in above cases that the petitioner-Bank is governed by statutory Rules as framed under the National Bank of Pakistan Ordinance of 1949, he may be allowed to raise the plea of jurisdiction based on the existence of the said Rules. Moreover, he has argued that the plea of jurisdiction, being a legal plea can be raised at any time. In view of the above we have permitted the learned counsel to argue on the said ground raised by him.
2. The facts briefly are that in all these cases the petitioner-Bank had charge-sheeted their employees and penalised them, who had approached the Labour Court and then appeals were filed before the Labour Appellate Tribunal with the result that the employees' petitions were allowed and they were ordered to be reinstated in some cases with back benefits and in some without back benefits.
3. The main point raised by the learned counsel for the petitioner-Bank is that the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance of 1968), do not apply to the employees of the petitioner-Bank and therefore, he has argued that the Labour Courts have no jurisdiction. He has referred to the provisions of 1st Proviso to Section 1(4) of the Ordinance of 1968, which reads as under:-- "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 workman employed therein."
4. Now, therefore, it is incumbent upon the petitioner to show that the petitioner-Bank was run by the Federal Government and that the statutory Rules existed. In order to substantiate his contentions Mr. Abbasi has argued that the Petitioner-Bank was created under the provisions of the National Bank of Pakistan Ordinance 1949 and also that the National Bank of Pakistan Staff Rules were framed in 1953 with due approval of Government, which were then superseded by the Rules of 1973, also with approval of Government. However, he pointed out that in the meanwhile the Banks (Nationalisation) Act, 1974 was promulgated whereby the present Bank was also nationalised. It is further contended by the learned counsel that the Board of Governors was appointed by the Government to manage the Banks and the said Board in the year 1980 framed fresh Staff Rules superseding the earlier Rules of 1973. He has contended that those Rules of 1980 were not framed with the approval of the Government. Mr. Abbasi has contended that under the provisions of section 11 of the Banks (Nationalisation) Act 1974, the Board of Directors was authorised to exercise the power as exercised by the Board under the Ordinance of 1949, which means that their powers were also subject to the same limitations and checks as provided in the said Ordinance. Therefore, the Board could not have framed the Rules of 1980 without the approval of the Federal Government. The learned counsel has further contended that therefore the said Rules of 1980 are nothing but only the departmental instructions and that the Rules of 1973 hold the field. In addition to the abovesaid cases of National Bank of Pakistan v. Manzoorul Hassan and Burhanuddin Shaikh v. National Bank of Pakistan Mr. Abbasi has placed reliance on the case of the Principal, Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170) wherein it has been held:-- "It is common ground that neither any Rules as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did frame some "Rules" for "governing the appointment, promotion, retirement, ,termination of service and dismissal of staff employed by the Board of Governors of the College," in its meeting held on 29th September, 1964, but these not having been made by the Government, could not be regarded as "Rules" under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These "Rules" therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat."
5. He has also placed reliance on the judgment of Hon'ble Supreme Court given on 25-4-1985 in the case of Abdul Ghani v. National Bank of Pakistan in Appeal No, 15-K of 1982. He has also relied on the case of Sheikh Rasheed Ahmad v. United Bank Limited and 3 others (PLD 1987 Peshawar 144), wherein it has been held:-- "6. We have given due consideration to the arguments raised before us as well as the law cited at the Bar. In our humble view the arguments raised by the learned counsel for the respondents carry weight. The Rules referred to by both the learned counsel were framed by the Executive Board in exercise of the powers vested in it by the Articles of Memorandum and Articles of Association of the United Bank Limited read with section 11 (4) of the Banks (Nationalisation) Act, 1974 already referred to. This Act and section 11(4) thereof did not confer any power on the Executive Board to frame Rules for the purposes of the Act, which power under the said Act vested in the Federal Govt. under section 20 thereof. Section 11 of the said Act contains provisions mostly pertaining to the management of the Banks and their day-to-day business and has nothing to do with the Rule- making power which vests in the Federal Government under section 20 thereof. It at the most may be regarded as having kept alive such power vesting in the Board under Memorandum and Articles of Association of the Bank and cannot be regarded as independent source of such power. it is not disputed before us that the Service Rules of the employees of the Bank have not been framed by the Federal Government under section 20 of the said Act. In a similar case (Syed Qamer Shah's case referred to above) of an employee of the Allied Bank of Pakistan Limited, a Bank nationalised under the said Act, this Court has already considered the matter involved in the this petition and the conclusion reached was, with which we are in respectful agreement, that the terms and conditions of service of the petitioner therein were not governed by statutory Rules, and, as such, he could not invoke the Constitutional jurisdiction of this Court. Our conclusion in the case of the petitioner is also the same."
6. Mr. Abbasi, the learned counsel for the petitioner, has then drawn our attention to the two Awards given by the Wage Commission for Banks and Financial Institutions constituted in terms of subsection (1) of section 38-A of the I.R.O. (hereinafter referred to as the Wage Commission). He has contended that the 1st Wage Commission of 1975 had framed the Bank Employees (Efficiency and Discipline) Rules 1975, but the 2nd Wage Commission of 1978 had specifically excluded the application of said Rules as far as the employees of the petitioner-Bank are concerned. He has referred to para. 26 of the 2nd Wage Award of 1978 and has argued that Rules framed by Wage Commission will apply only to the institutions where there are no such statutory Rules. He has also referred to paragraphs 26 and 27 of the said Award. Paragraphs 26 and 27 read as under:-- "26. Disciplinary Rules.--For a smooth running of any institution it is necessary that Service Rules be made and discipline should be maintained. The Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975, as framed by the First Wage Commission appear on the whole to be adequate to deal with disciplinary matters. The Commission, however, considers it necessary to limit the period of suspension to a period not exceeding 3 months in non-cognisable case. The managements have readily agreed to this. They have told us that inquiries are seldom prolonged by them. To avoid any possible conflict we would like to make it clear that the aforesaid Rules shall apply only in cases where there are no such Statutory Rules.
27. Service Rules.--As regards Service Rules, we have perused amongst others the National Bank of Pakistan (Staff) Service Rules, 1973, and the State Bank of Pakistan (Staff) Regulations (as amended up to 30th June, 1963, and thereafter). We feel that all the nationalised Banks should model their Rules on the lines of National Bank of Pakistan (Staff) Service Rules, 1973. The State Bank of Pakistan may, however, continue to follow its own Regulations. As for the financial institutions, they may follow their own Service Rules framed under their respective charters, if any. If not, they should adopt, with necessary modifications, either the IDBP's or ADBP's Staff Service Regulations. Needless to say, Service Rules are necessary to describe the rights and obligations of the employees and to inculcate a sense of discipline in them."
7. Mr. Sultan Ahmed Shaikh, the learned counsel appearing for the petitioner-Bank in only C.P.No, D- 31/1984 had adopted the arguments of Mr. Hidayatullah Abbasi and had further added that the Central Board is appointed by the Federal Government under the provisions of Section 11 of Banks (Nationalisation) Act, 1974 which is answerable to the Banking Council which Council in turn is answerable to the Federal Government. From this, he has argued that it is implied that the petitioner-Bank is carried on under the authority of the Federal Government and therefore, the Labour Courts have no jurisdiction in the matter.
8. Mr. M.L. Shahani appearing for respondents in most of the petitions has argued the respondents' case while the other counsel have adopted his arguments.
9. He has argued that in order to establish the ouster of applicability of the provisions of the Ordinance 1968, the two necessary conditions are that there should be statutory Rules applicable to the Bank and that the same should be run by the Federal or Provincial Government. According to him these two conditions do not exist. The first contention raised by Mr. Shahani is that according to the provisions of Section 38 of the 1.R.O., the Award of Wage Commission supersedes the statutory Rules. According to him the said Award is the charter which covers the present case.
10. He has argued that the 1st Wage Commission had framed the Rules in 1975 which had the effect of superseding the petitioner-Bank's Rules of 1973 and, therefore, the same are no more in the field by virtue of the provisions of Section 38-1 of the I.R.O. He has further argued that the action taken by the petitioner-Bank is under the Rules framed in 1980 by their Central Board. He has further contended that the Award given by the Wage Commission has the status of the Award given by the N.I.R.C.
11. We cannot agree with the above contention of the learned counsel for respondents. Paragraphs 26 and 27 of the Award of 2nd Wage Commission have clearly said that the Service Rules of petitioner-Bank were considered and also that the Service Rules framed by the Wage Commission of 1975 would apply when no statutory Rules exist. The petitioner-Bank is established under the Ordinance of 1949 and is managed under the authority of the Federal Government. Therefore, the Rules framed by the Wage Commission or the Central Board without the approval of the authority of the Government cannot be equated with the statutory Rules. We, therefore, hold that the National Bank of Pakistan (Staff) Service Rules 1973 hold the field and that the statutory Rules of Service do exist.
12. Mr. Abdul Hafeez Lakho, the learned Advocate-General, Sind, appearing on Court notice, has also submitted that it is the Rules of 1973 as framed under the Ordinance of 1949 which hold the field and not the Rules as framed by the Wage Commission of 1975.
13. The learned counsel for the respondents then argued that the petitioner-Bank is not carried on by or under the authority of the Federal Government. He contended that the petitioner-Bank which was established under section 3 of the Ordinance of 1949 had its own share capital and was run under the authority of its Central Board as provided in section 11 of the said Ordinance. His contention further is that this Board is answerable to Banking Council and not the Federal Government. He has further submitted that it can at the most be said that the petitioner-Bank is 'controlled' by the Federal Government but it cannot be said that the same is 'run' by the Federal Government. It may be pointed out that the petitioner-Bank is one of the Banks nationalised under the Banks (Nationalisation) Act 1974. Section 2 of the Act provides that it shall have the effect notwithstanding any thing contained in any other law for the time being in force. Section 5(1) of the said Act lays down that the ownership, management and control of all Banks shall stand transferred to and vest in the Federal Government. From these provisions it can safely be construed that the Nationalised Banks are the establishments carried on by or under the authority of the Federal Government. It may also be seen that word "carried on" is used in the proviso to section 1(4) of the Ordinance of 1968 and not the word 'controlled' or `run'.
14. Mr. Shahani has referred to the cases of National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others (1975 PLC 1) and I.C.P. Employees' Front Karachi v. Presiding Officer, Vth Sind Labour Court, Karachi (1977 PLC 154). In our view these cases have no direct bearing on the present cases.
15. The upshot of the above discussion is that we hold that the petitioner-Bank is carried on by or under the authority of the Federal Government and that the statutory Rules of 1973 do exist and are applicable. The provisions of the Ordinance of 1968 are therefore, not applicable to the present case but the services of the employees of the petitioner are governed by the National Bank of Pakistan (Staff) Rules 1973.
16. Mr. M.L. Shahani has then argued that even if the provisions of the Ordinance of 1968 are not applicable, still the respondents are entitled to seek their remedy under the provisions of the Industrial Relations Ordinance of 1969 (hereinafter referred to as the I.R.O.). He has argued that admittedly the petitioner is a Commercial Establishment and the respondents are covered by the definition of `Worker' and 'workman' as given in Section 2 (xxviii) of the I.R.O. He has further argued that the services of the respondents are governed by the National Bank of Pakistan (Staff) Service Rules of 1973, which are statutory Rules and which lay down a procedure for disciplinary action.
17. Rule 39 of the above Rules lays down as under:-- "39. Disciplinary action--procedure.--(1) Before it is decided to impose any penalty on an employee under Rule 36 for an offence of which he has been reported guilty, he shall be called upon by the competent authority to render a written explanation of the charges against him and show cause by such date as may be specified in this behalf as to why disciplinary action should not be taken against him. The employee's explanation together with the charges against him shall be submitted to the authority competent to award the punishment.
(2) The authority shall either enquire into the case himself or obtain an independent report on the case in writing from an officer or a committee of officers specially deputed by the authority to investigate the case. The report together with the employee's statement shall be laid before the authority who shall then consider the matter and award such punishment, if any, as he deems proper in the circumstances. The decision of such authority shall be conveyed in writing to the employee concerned: Provided that the requirements of sub-rules (1) and (2) shall not apply:--
(a) where the facts on the basis of which action is to be taken have been established in a Court of law; or
(b) where the employee has absconded or where it is for any other reason impracticable to communicate with him; or
(c) where the employee is caught in the course of the commission of a wrongful act and the circumstances attending the wrongful act are so manifest that compliance with the aforesaid sub-rules would be a purposeless formality; and it will be just and proper for the authority to take an explanation of the employee and award punishment forthwith."
18. His contention is that the above-quoted Rule lays down a procedure for taking disciplinary action and guarantees and secures certain rights to the employees. From this he has further argued that the provisions of section 25-A of the I.R.O., are attracted. It will be advantageous to reproduce the said provisions which read as under:-- "25-A. Redress of individual grievances.--(1) A worker may bring his grievance 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.
19. (2)Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
20. (3)Where a worker brings his grievance to the notice of his employer through his Shop Steward or Collective Bargaining Agent the employer shall, within seven days of grievance being brought to his notice, communicate his decision in writing to the Shop Steward or, as the case may be, the Collective Bargaining Agent.
21. (4)If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may he, subsection (3), or if the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Collective Bargaining Agent or the Labour Court, or, as the case may be the Collective Bargaining Agent may take the matter to the Labour Court, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were in an industrial dispute: Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.
(8) If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees...
(9) No person shall be prosecuted under subsection (8) except on a complaint in writing:--
(a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or
(b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with.
(10) For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court."
22. The learned counsel for the respondents has relied on the case of National Bank of Pakistan v.
23. Nizamuddin Mahr (1980 PLC 1118) to support his above contention. We have examined the abovesaid provisions of I.R.O. Although the provisions of the Ordinance of 1968 are not applicable to the case of the respondents for the reason that their services are governed by the National Bank of Pakistan (Staff) Services Rules, 1973, they cannot be deprived of the remedies available to them as under the provisions of the I.R.O., section 25-A of the I.R.O., is the provision that provides for the forum before which the workman can take his matter for the redress. It would be pertinent to point out here that the words "under any law" as mentioned in subsection (1) of section 25-A of the I.R.O., would include the aforesaid Service Rules of 1973 as these rules being the Statutory Rules have the force of law. Further subsection (4) of Section 25-A of I.R.O., enables the workers to take the matter before the Labour Court.
24. It is an admitted position that the action has not been taken under the National Bank of Pakistan (Staff) Services Rules of 1980 which we have already held above are not the statutory Rules but can at the most be construed as departmental instructions. Thus the action initiated against the respondents by the petitioner, from the very inception, that is, the issuance of charge-sheet and all subsequent proceedings are without lawful authority.
25. On further examination of the aforesaid Sind Services Rules of 1973, we find that Rule 40 provides for filing of an appeal or application for review. Sub-rules (1) & (2) read as under:-- "40. Appeals and applications for review.--(1) An employee shall have the right of appeal or of making an application for review, as provided in this rule against any of the penalties imposed upon him.
(2) An appeal or, as the case may be, an application for review shall lie:--
(a) in the case of employees in Category 1, to the Central Board which shall refer the same to a Standing Committee of three Directors consisting of one Government Director, one elected Director and the Managing Director. The Committee shall consider the application and submit its recommendations to the Central Board for such final orders as the latter may deem fit to make;
(b) in the case of other employees, to an authority next higher to that which has passed the orders in question: Provided that in every case where the employee concerned so desires, he will have a right to he heard in person before the authority competent to hear the review or, as the case may be, the appeal."
26. However, there is no provision in the said Rules which would exclude the applicability of the provisions of I.R.O., 1969, reliance is placed on the case of Trustees of the Port of Karachi v. Abdul Ghani (1983 SCMR 769). It has been held in this case:-- "There is no provision in the Karachi Port Trust Act, 1886, which can be read to exclude the applicability of the Industrial Relations Ordinance, 1969, and for that matter section 25-A of the Ordinance. It is true that an appeal is provided under section 23 of the Karachi Port Trust Act, 1886, but there is no apparent bar against the availability of section 25-A of the Ordinance, and ought it be said that the two remedies are available, side by side, as prima facie the Industrial Relations Ordinance, 1969, by its scope, overreaches an establishment which satisfies the definitions of employer, worker or workman and the establishment. On this view of the matter, it is difficult to accept that the Karachi Port Trust Act is a special Act qua its workmen who are governed by it."
27. On merits the Labour Court and the Labour Appellate Tribunal have given concurrent findings which are not questioned by the learned counsel for the petitioner. We will, therefore, not interfere with the same.
28. The upshot of the above discussion is that we hold that the Labour Court does have the jurisdiction to adjudicate in the present cases and their decisions are maintained. The present petitions are, therefore, dismissed. However, there will be no order as to costs.