' The Muslim Commercial Bank Ltd. Through Writ Petition No, 1382 of 1985 has prayed that the order dated 13-3-1985 of respondent No, 1 may be declared without lawful authority whereas Tariq Javed, petitioner, through Writ Petition No, 5051 of 1985 has prayed that the above order to the extent of nonpayment of back benefits to him may be declared without lawful authority and of no legal effect. This judgment will dispose of both these writ petitions as common questions of law and facts are involved therein.
2. The relevant facts are that Tariq Javed, respondent No, 3 (hereinafter to be referred as employee) was serving as an Assistant in the Garjakh Branch, Gujranwala of the Muslim Commercial Bank Ltd. (hereinafter to be called as Bank). He proceeded on 45 days' leave on 26-5- 1981 and was to report back on duty on 10-7-1981 but since it was Friday, therefore, he was to resume duty on 11-7-1981. But he failed to do so. Therefore, the Bank served him with a charge- sheet dated 22-7-1981. The employee replied to the same. Thereafter the Bank, after completing the necessary formalities proceeded to dismiss him from service vide order dated 5-4-1982. The employee after serving the Bank with a grievance notice proceeded to file grievance petition. The Bank contested the same and the learned Labour Court, respondent No, 2, dismissed it vide order dated 10-5-1984. The employee impugned this order through an appeal before respondent No, 1, who partially accepted the same vide order dated 13-3-1985 with the finding that the Bank had failed to serve the employee with a second show-cause notice. The result was that the employee was ordered to be reinstated but his prayer for back benefits was refused because he succeeded on technical grounds. Both the parties have challenged this order through the present writ petitions. The Bank has impugned his reinstatement while the employee has claimed that he was entitled to back benefits as well. Both the petitions were admitted to regular hearing and ordered to be heard together. The Bank and the employee have appeared and contested the writ petitions of each other.
3. Learned counsel for the Bank argued that the employee was dismissed from service for his absence from duty. He admitted his guilt. Therefore, the inquiry and other proceedings were merely a formality but the respondent No, 1 failed to appreciate the facts and law applicable to the case.
The other submission is that the employee was proceeded under the Muslim Commercial Bank Limited (Staff) Service Rules, 1981, and there is no provision for service of second show-cause notice and the respondent No, 1 failed to appreciate this legal position. Therefore, its order is rendered illegal. It is added that respondent No, 1 proceeded on surmises and conjectures and not on the material on the record. The arguments are summed up with the submission that the employee even thereafter left Pakistan and was convicted by the Crown Court at Coventry. The arguments are concluded with the submission that there is no merit in the writ petition of the employee for grant of back benefits because his reinstatement was ordered on technical points and according to the latest view of the Supreme Court in the case of Qadeer Ahmad v. The Punjab Labour Appellate Tribunal, Lahore, and another PLD 1990 SC 787, the employee is not entitled to back benefits in such a situation.
4.On the other hand, the learned counsel for the employee argued that the Bank has tried to set up a new case when it is argued that no show-cause notice was necessary. It is added that the conviction under the Misuse of Drugs Act by the British Court is not the subject-matter of the disciplinary proceedings and it is altogether a foreign fact which cannot be taken into consideration. In this behalf, the learned counsel referred to Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1981 SC 225, Sarfraz v. General Manager (Leaf) Pakistan Tobacco Company Limited 1988 SCMR 1352, Syed Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 176 and K.A. Jamil v.
Sultan Muhammad Khan PLD 1966 (W.P.) Pesh.
43. It is argued that certain portions of the reply are not to be read in isolation but the whole reply is to be read and taken into consideration. The arguments are summed up with the submission that the Zonal Chief is not competent Authority to dismiss his client. It is added that the Labour Laws are beneficial laws and action against him is mala fide. Therefore, in case of any ambiguity benefit should go to him. In this behalf he referred to Muhammad v . Water and Power Development Authority, Lahore and another 1973 PLC 270, Ghulam Mohy-ud-Din v. Chief Settlement Commissioner PLD 1964 SC 829, Begum Nazir Abdul Hamid v. Pakistan (Federal Government) PLD 1974 Lah. 7, Haji Hashmat Ullah and 9 others Y.-Karachi Municipal Corporation PLD 1971 Kar. 514 and The State v. Zia-ur-Rahman PLD 1973 SC 49. It is argued that the action of the Bank was mala fide and colourable exercise as the competent Authority directed the subordinate Authority to dismiss the employee. The other submission is that the Bank has waived or acquiesced its right for agitating against second show-cause notice. In this behalf he referred to Standard Bank Limited Karachi v. Sub-Divisional Magistrate, Karachi 1974 PLC 138, Badruddin H. Mavani v. Government of Pakistan and another 1982 CLC 44 and Amanullah Khan v. Chotey Khan 1978 SCMR 14.
' The learned counsel for the employee, however, candidly conceded that there is no merit in the writ petition filed by his client in view of the case of Qadeer Ahmad v. The Punjab Labour Appellate Tribunal, Lahore and another (supra).
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and the precedent cases. Now I proceed to deal with the arguments of the learned counsel for the Bank with reference to the arguments of the learned counsel for the employee. The learned counsel for the Bank submitted that the employee seems to be a political worker. He went on 45 days' leave and without permission and intimation left the country and went to Germany where he tried to take asylum as a political worker, It is added that employees of the Bank cannot leave station without permission whereas the employee/respondent No, 3 left the country. He was served with charge-sheet and in reply he categorically confessed his guilt while the learned counsel for the employee/contesting respondent submitted that the reply to the charge-sheet is to be read as a whole and not certain portion in isolation. It is clear from the reply Annexure 'B' with the writ petition that the employee in categorical terms admitted that he has violated the Bank Rules. The relevant portion reads as muter:- {{URDU TEXT}} ' Then on next page he submitted as under:- {{URDU TEXT}} There is nothing in this reply which has been ignored by the petitioner. The respondent No, 3/employee not only was guilty of unauthorised absence from duty but also left the country without intimation to the Bank. The employee was consistent in his plea as is clear from the reply to the charge-sheet, Annexure '13' and his application Annexure 'K' with written statement. He appeared as P.W. 2 before respondent No, 2 and admitted that he did not seek permission to leave Pakistan and admitted that the Red/Cross only purchases tickets for the persons, who are seeking political asylum. This falsifies his story of loss of ticket. Even otherwise since it was a return ticket, he could have easily secured the duplicate of the same from Airways. Therefore, the dismissal order after his clear admission of the guilt was a mere formality.
6. Now coming to the second show-cause notice. The learned counsel for the employee has taken up the plea that the second show-cause notice served by the Bank even if it is ignored will not make any difference because there is no provision in the Muslim Commercial Bank Limited (Staff)
Service Rules, 1981, and Award of The Wage Commission for serving with a second show-cause notice. In this behalf, he referred to Rule 41 of the said Rules on the one hand and on the other hand submitted that this question was examined by this Court in Writ Petition No, 1435 of 1985 titled 'Muslim Commercial Bank Limited v. Punjab Labour Appellate Tribunal and 2 others' wherein it was held as under:- "Service of second show-cause notice is not the legal requirement as per Award of the Wage Commission which held the field at the relevant time. .."..........................................
' This brings us to the last argument of the learned counsel for the respondent that the order was not passed by the competent Authority. It should be made clear at the very outset that this argument did not prevail with respondent No, 1 as it was not the basis on which the appeal of the employee was accepted. This argument on merits has no force because a competent Authority has passed the order as is clear from Annexures `G' and 'H'. Annexure T was just the communication of the order passed by the Circle Head. Therefore, there is no merit in this plea. Even otherwise, the moment it is held that the second show-cause notice is not necessary, the orders Annexures `G' and 'H' become the orders of dismissal and the Zonal Head simply issued the order in compliance with these orders. The text of Annexure T fully supports this view. There is no merit in the plea that the competent Authority, the Circle Executive, when asked the Zonal Head to issue notice, the action was mala fide and colourable exercise. The Circle Executive has passed the order of dismissal and the Zonal Head was directed to communicate the same. There is nothing wrong with this mode. The last submission that the petitioner Bank has waived right for agitating against show-cause notice is equally without merit. There is no estoppel against law.
' There is no merit in the claim of the employee for back benefits in view of the judgment of the Supreme Court in the case of Qadeer Ahmad v. The Punjab Labour Appellate Tribunal, Lahore and another (supra).
7. The upshot of the above discussion is that the writ petition (W.P. No, 7'4 1382 of 1985) filed by the Bank is allowed while the writ petition (W.P. No, 5051 V.A`. Of 1985) filed by the employee is dismissed. However, there will be no order as to costs.