' The relevant facts are that the respondent No, 1 was serving as a Manager and posted at Kotwali Branch, Faisalabad. There were allegations that the respondent No,1 helped some of the clients of the Bank to avoid payment of Zakat. The petitioner accordingly charge-sheeted the respondent No,1 vide charge-sheet dated 12-8-1981. The respondent submitted reply thereto. He clearly controverted the allegations and also pleaded that the charge-sheet is barred by limitation and the same has not been issued by a competent authority. The petitioner after receipt of the reply of the employee proceeded to appoint Mr. Hafeezur-Rehman Vice-President, Circle Office as Inquiry.
Officer, who formulated the report dated 2-1-1982. The petitioner after receipt of the inquiry report proceeded to terminate the services of respondent No,1 and informed him of this decision through its letter dated 25-4-1982.
2. The respondent No,1 impugned this order through grievance petition before respondent No,
2. The petitioner resisted this petition. The respondent No,2 recorded evidence and after hearing the arguments held that the charge-sheet was time-barred and neither the charge-sheet nor the termination order have been issued by the competent authority. The result was that the grievance petition of the employee was accepted vide order dated 27-4-1989 but without any back benefits.
' Both the parties filed separate appeals against this order. The appeal of the petitioner against re- instatement of respondent No,1 was dismissed while the appeal of the respondent No,1 for allowing back benefits was partially allowed vide order dated 7-10-1989.
3. The petitioner has filed the present constitutional petition against the order of respondent No,2 reinstating the respondent No,1 and order of respondent No,3 dismissing its appeal and partially allowing the appeal of respondent No,1. While respondent No,1 has filed Constitutional Petition.
No,362/90 against the partial dismissal of his appeal by respondent No,3 and rejection of his claim by respondent No,2 for back benefits. Both the petitions raise common questions of law and facts, therefore, they are being disposed of by this single judgment.
4. The learned counsel for the petitioner in support of the petition has argued that respondent No,1 was not a workman, therefore, neither grievance petition was competent nor the respondents 2 and 3 had jurisdiction to deal with the matter. It is submitted that the respondent No, 1 was Manager and Attorney Holder and enjoying Supervisory position, therefore, not covered by the definition of workman as contained in the I.R.O. The other submission was that the respondent No,3 has misread the evidence on record as is clear from para. No, 4 of its judgment. The arguments are concluded with the submission that according to the statement of respondent No, 1 as P.W. 6 he was looking after the business of his deceased brother and was getting Rs,1,000 - 1,500 per month.
Therefore, he was not entitled to any back benefits and the respondent No,3 wrongly and illegally allowed him benefits to the extent of 50%.
5. On the other hand, the learned counsel for the respondent No,1 has argued that the plea as to the workman although taken in the written reply was neither pressed before the respondent No,2 nor before respondent No,3. It is added that the Bank, in order to meet the plea that the charge- sheet was time-barred, clearly pleaded that the respondent was governed by wage commission award, therefore, there is no limitation for service of charge-sheet. It is added that the wage commission award is only applicable to the workmen. The petitioner is estopped by his own conduct to raise this plea. It is further submitted that the status of petitioner is not a legal point but it is a purely question of fact, which has to be proved like any other question of fact by leading evidence. The same, therefore, cannot be raised in constitutional jurisdiction for the first time.
6. It is submitted that mis-reading pointed out in para No,4 is of no consequence because the same is not the basis of the conclusions. It is added that the alleged confessionals statement does not make any sense and is too vague. The arguments are summed with the submissions that the S.T.Ds were prepared by the petitioner on 19-6-1980 while 20-6-1980 was Friday and 21-6-1980 was declared a Bank Holiday. It is submitted that the petitioner came to know of the fact that the Saturday has been declared Bank Holiday when he reached Bank alongwith other colleagues, therefore, there was no question of alleged S.T.Ds being prepared on 21-6-1980.
It is submitted that the respondents Nos.2 and 3 failed to appreciate that his client was entitled to reinstatement with full benefits.
7. I have given my anxious consideration to the arguments of the learned counsel for the petitioner and gone through the record and precedent cases. The first submission on behalf of the petitioner was that since the respondent No,1 was not a 'workman' therefore, neither grievance petition was competent nor the respondents 2 and 3 had any jurisdiction in the matter. The learned counsel for he petitioner in support of the petition has referred to cases reported as Ganga R. Hamdani v.
Standard Bank Ltd and others 1985 SCM R 1511, Muhammad Rafique Ahmad v. Executive Board, United Bank Ltd., and 2 others 1983 PLC 96, Muhammad Tariq Saeed Hashmi v. Habib Bank Ltd., and 3 others 1983 PLC 810, United Bank Ltd., and others v. Muhammad All and two others 1984 PLC page 1, Muhammad Zaheer Chauhdry v. Habib Bank Ltd., and others 1984 PLC 950, Muhammad Nasim Farooqi v. Muslim Commercial Bank Ltd., Karachi 1982 PLC 299, Muhammad All Ghani Khan v. Habib Bank Ltd., Karachi 1979 PLC 156, United Bank Ltd., Sukkur v. Abdul Wahab Qazi and 3 others 1983 PLC 237 and Muhammad Iqbal Soomro v. Messrs United Bank Ltd., Karachi and others 1978 PLC 360.
8. On the other hand, the learned counsel for the respondent No,1 has referred to the recent judgment of Hon'ble Supreme Court in case of Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others 1983 PLC 498, Habib Bank Ltd; v. Amin. Hussain and others 1988 PLC 951, National Bank of Pakistan v. Punjab Labour Court No, V and others 1988 PLC 956, Muslim Commercial Bank Ltd. v. Mushtaq Ahmad Malik and others 1988 PLC 945, Habib Bank Ltd. v. Punjab Labour Appellate Tribunal 1988 PLC 941 and Allied Bank Ltd. v. Khalid Mahmood and others 1989 PLC 12.
9. The question whether the respondent No,1 is workman or not is not purely a question Of law but it is mainly question of fact. The factual controversy has been foreclosed by concurrent findings of fact recorded by the two Courts below. Moreover the petitioner itself took up the position that the case is governed by 'Wage Commission Award'. The admitted position is that the award covers in its folds the workman only therefore, the petitioner is now estopped by its own conduct to turn round and contend that petitioner is not a workman. There is also force in the arguments of the learned counsel for the respondent No,1 that the petitioner did not press this point before the two Courts below.
10. Now coming to the second argument that the respondent No,3 has misread the evidence. The learned counsel for the petitioner in this behalf has referred to para. 4 of this judgment, wherein it is recorded that inquiry proceedings were not brought on record except the inquiry report. This is admittedly not the position. The inquiry report as well as inquiry proceedings are on file as Exhs. R.9 and R.2. The same were produced by Inquiry Officer R.W.1. But this is not all. It is clear from the proceedings that the employee was not supplied a copy of the inquiry report. This way there is nothing wrong with the findings.
' It is recorded in para. 4 of order of respondent No,3 that the application confessing the guilt was not proved. There is nothing wrong with the findings because the petitioner was not confronted with the document when he appeared as P.W. 6, therefore, the documents cannot be used against him. In this behalf reference can be made to case "of Sakindar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730. This is not all. Even the case of the petitioner is that the alleged confession was made before Martial Law Authorities. It was pointed out that the same was made under duress and coercion, therefore, cannot be accepted as binding. The alleged confession is placed as Exh.1 on the inquiry file. The same does not make any sense as it is not clear as to whom it was made. On the other hand R.W.1 had clearly admitted that neither he sent for the said account-holders nor examined them. Anyhow it is factual controversy which has been set at rest by concurrent finding of fact by two Courts below. In this behalf reference can be made to the judgment of Hon'ble Supreme Court in the case of Syed All Shah v. Abdul Sagheer Sherwani and others PLD 1990 SC 504.
11. This is not all. The charge-sheet was not issued by competent authority and the learned counsel in this behalf referred to the defintion of competent authority and appendix 1 to United Bank (Staff Service Rules 1981) and case of Capt. Muhammad Azhar v. Commissioner of Karachi and one other PLD 1966 SC 253 and judgments of this Court in Writ Petitions Nos. 4159/1983 and 2076/1984. The petitioner conducted the proceedings in utter violation of principles of natural justice as much as the respondent No,1 in spite of request was not supplied with a copy of inquiry report. The learned counsel for the respondent No,1 rightly referred to judgment of Hon'ble Supreme Court in the case of Syed Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 176.
12. Now coming to the back benefits the learned counsel for the petitioner submitted that the petitioner was not entitled to any back benefits and the respondent No,3 wrongly allowed him benefits to the extent of 50%.
13. On the other band, the learned counsel for respondent No,1 vehemently argued that his client was entitled to full benefits. In this behalf he has referred to the judgments of Hon'ble Supreme Court in the cases of Pakistan through General Manager P.W.R Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 and Wahad Ahmad Kamal v. The Punjab Agricultural Development and Supply Corporation and 4 others 1986 PLC 360. The claim of respondent No,1 for full benefits is not justified at all in view of his own statement as P.W. 6 that he was earning Rs, 1,000 - 1,500 per month during this period.
14. The respondent No,3 has allowed the back benefits to the extent of 50 per cent to respondent No,1. The same is duly justified by respondent No,3. The relevant portion of its order reads as under:- "The respondent was terminated from service on 25-4-1982 but was reinstated vide order dated 27-4-1989 after about 7 years. For some time the decision of the honourable Supreme Court was awaited on the point of jurisdiction. Sometime the case was adjourned at the request of the respondent and sometime at the request of the appellant. The case was not heard on several dates as the learned Presiding Officer was not available or the case was not taken up.
' In these circumstances, in my opinion the respondent is entitled to half of the back benefits."
' There is nothing wrong with these observations. The writ of the Bank is otherwise liable to be dismissed because it proceeded without basis and now if the writ is accepted it will amount to restore an illegal and justified order.
15. The upshot of this discussion is that this petition as well as Writ Petition No, 362 filed by respondent No,1 are dismissed. However, there is no order as to costs.