' RUSTAM S. SIDHWA, J.---This is an appeal by the National Bank of Pakistan and another, appellants, against the judgment of a learned Single Judge of the Lahore High Court dated 5-2- 1989 dismissing their writ petition.
2. The brief facts of the case are that Mohammad Ishaq respondent No,3 (hereinafter to be referred to as "the respondent"), was in the service of the National Bank of Pakistan, appellant, as Assistant and posted in the Sathral Branch of that Bank in District Sialkot in 1979. On 5-2-1979 he was served with a charge-sheet alleging misconduct on one count. He submitted reply to the charge-sheet on 26-2-1979 and denied the charge. Thereafter, he was served with a supplementary charge-sheet on 27-9-1981 alleging misconduct on a number of counts. He again denied the charges and submitted his reply on 22-11-1981. His reply was considered unsatisfactory and, therefore, a domestic enquiry was initiated. The Enquiry Officer simply recorded the statement of the respondent and did not examine any witness. He, however, on 30-5-1982 exonerated the respondent of the charge contained in the first charge-sheet, but with regard to the charges contained in the supplementary charge-sheet, he found that the respondent himself may have had no Hand in the fraud and malpractice committed by the ex-Manager, but he had knowledge that something was wrong and he could not escape the charge of misconduct and criminal breach of trust reposed in him. The Senior Vice-President (Admn), vide his order dated 21-9-1982, removed the respondent from the bank's service with immediate effect.
3. After serving grievance notice, the respondent filed grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter to be referred to as "the Ordinance"), before the Labour Court No,7, Gujranwala. The grievance petition was contested by the appellant-Bank. The learned Labour Court, after recording the evidence of the parties and hearing their counsel, found that no charge whatsoever was actually established against the respondent, that the dismissal of the respondent was ordered on the charges contained in both the charge-sheets, though the Enquiry Officer had exonerated him of the charge contained in the first charge-sheet, that either or both the charge-sheets were issued by a person not competent to do so and that the impugned dismissal order appeared to have been passed mechanically and without proper application of mind to the various aspects of the case. The learned Labour Court also found that the person who had issued the second charge-sheet and had passed the dismissal order had both been properly impleaded as parties. It also found that the respondent was competent to avail his remedy before the Labour Court under the Wage Commission Award, if not under the Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that he was not liable to first avail the departmental remedy before having recourse to the Labour Court. The respondent was consequently ordered to be reinstated in service with back benefits vide judgment dated 12-6- 1983.
4. Feeling aggrieved, the appellant-Bank preferred an appeal before the Punjab Labour Appellate Tribunal. Before the said Tribunal the Bank in arguments only took up two legal issues. First: that the Labour Court had no jurisdiction and only the National Industrial Relations Commission had jurisdiction to decide the respondent's case. And Second: That the Wage Commission Award was an award of the National Industrial Relations Commission, according to section 38-D of the Industrial Relations Ordinance, 1969, and on the basis of such award, no remedy could be sought under section 25-A of the said Ordinance. The Appellate Tribunal rejected both these contentions.
5. Being aggrieved by the above order, the appellant-Bank filed a writ petition in the High Court where, during arguments, it took up the same legal two issues before the High Court, which it had done before the appellate Tribunal. A learned Single Judge of the High Court rejected both the contentions by his judgment dated 5-2-1989.
6. The appellant-Bank thereupon petitioned this Court for leave to appeal, which leave was granted to consider inter alia the following points of law arising in this case:
(1) The effect of not impleading the body corporate, namely, the National Bank of Pakistan which was to enforce the order and suffer the burden of back benefits.
(2) There being statutory rules of service applicable, Standing Orders Ordinance, stood excluded and departmental remedies of appeal etc. Should have been availed of before approaching the Labour Court, under section 25-A of the Industrial Relations Ordinance, 1969.
(3) The Labour Court after holding that the charge-sheets had not been competently framed should not have foreclosed the right of employer to correct the legal defects by holding the enquiry in accordance with the law.
(4) The Punjab Labour Appellate Tribunal proceeded on the assumption of law that if the competent authority did not agree with the Enquiry Officer on the finding exonerating the delinquent, it was bound to appoint another Enquiry Officer and the competent authority could not pass an order against the report of the Enquiry Officer.
(5) Whether on an inconclusive enquiry or improper enquiry, back benefits in full should have been allowed to the employee?
7. On behalf of the appellant it is submitted that the application filed by the respondent under section 25-A of the Ordinance was not filed against the National Bank of Pakistan, which was the real employer and which could sue and be sued only in its corporate capacity, but that the Executive Vice-President and the Senior Vice-President (Admn) of the Bank were impleaded as respondents and that therefore the petition was incompetent. In this connection learned counsel relies upon the United Bank Limited v. Mohammad Tufail Ahmad (1987 PLC 1). It is further contended that the respondent being governed by the National Bank of Pakistan (Staff) Service Rules, 1973, when the two show-cause notices were given, the Punjab Labour Court could not decide the case under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter to be referred to as the "Standing Orders Ordinance"), as section 1(4) proviso thereof excluded the applicability of the Ordinance in respect of industrial and commercial establishments which were carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline were applicable to the workmen employed therein. With regard to the proposition that the National Bank was run under the authority and control of the Federal Government, Syed Irshad Hussain v. Habib Bank (1979 PLC 543), Vice-President, National Bank of Pakistan v. Punjab Labour Appellate Tribunal (1985 PLC 1053) and National Bank of Pakistan v. Nizamuddin Mehr (1980 PLC 1118) are cited. For the proposition that the respondent was governed by the National Bank of Pakistan (Staff) Service Rules, 1973, which were statutory rules, Burhanuddin Shaikh v. National Bank of Pakistan (1985 CLC 2003) is cited. It is therefore contended that the petition under section 25-A of the Ordinance was therefore not competent and should have been dismissed. In this connection, it is also urged that the respondent should have first availed the statutory remedy of appeal provided by rule 40(2) of the National Bank of Pakistan (Staff) Service Rules, 1973, as provided by para 258(1)(9) of the Wage Commission award. It is next contended that as the 1973 Service Rules provided an appeal against his dismissal, the respondent could not have approached the Labour Court before availing of that remedy. It is lastly submitted that the lower Labour Courts having held that there was defect in the procedure of holding the domestic inquiry, it should have reinstated the respondent without back benefits, subject to the right of the appellant-Bank to hold a fresh enquiry, with back benefits dependent on the result of the said fresh enquiry. In this connection, learned counsel refers to Mehmood Shah v. Dawood Cotton Mills Limited (1982 PLC 365) and Islamabad Club v. Mohammad Ismail (1982 SCM R 126).
8. On behalf of the respondent it is submitted that section 2(viii) of the Industrial Relations Ordinance defines "employer" to inter alia include any person responsible for the management, supervision and control of the establishment, or in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority apppointed in that behalf or where no such authority is appointed, the Head of the Department.
Since the Executive Vice-President and Senior Vice-President (Admn) of the Bank's Principal Office at Lahore were the Officers who had charge-sheeted and dismissed the respondent, and even now the said two persons have preferred the present appeal, they were the concerned Heads of the Department and that the employer had therefore been properly impleaded. It is further submitted that even if section 1(4) proviso of the Standing Orders Ordinance is held applicable to the case, yet, on the admission of the counsel for the appellant-Bank that statutory rules were applicable to the respondent, section 25-A of the Industrial Relations, Ordinance would be applicable as the respondent could bring a grievance petition in respect of any right guaranteed or secured to him by or under any law, which would include the rules which can be treated as law. In this respect, learned counsel also submits that his client squarely fell within the definition of workman, as given in section 2(xxviii) of the Ordinance, and the Bank fell within the definition of "establishment", as given in section 2(ix) of the said Ordinance, and as the right guaranteed to his client arise out of statutory rules framed on the basis of para 27 of the Second Wage Commission Award 1978, the right guaranteed under the said Award could be asserted to bring the petition. In this connection, learned counsel refers to Iftikhar Ahmad v. President, National Bank of Pakistan (PLD 1988 SC 53). As regards the contention that the respondent could not have approached the Labour Court direct, it is submitted that if concurrent remedies were available, any one of them did not bar the other. In respect of the last submission raised by the learned counsel for the appellant, it is submitted that the appellant-Bank having itself rashly and negligently conducted the domestic enquiry in disregard of rules and procedure, to which the respondent was not to blame, cannot now be permitted after over 12 years to re-start the enquiry again or to take back the back benefits which were granted to him by the Labour Court.
9. We have heard the arguments of the learned counsel for the appellant' and the respondents and have perused the record. With regard to the first question relating to the non-impleadment of the National Bank of Pakistan as a respondent in the grievance petition filed by the respondent under section 25-A of the Ordinance, it is clear that both the Executive Vice-President and the Senior Vice-President (Admn) of the Principal Office of the National Bank of Pakistan, Lahore, were impleaded as respondents. Under section 2(viii) of the Ordinance, "employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who are which employs workman in the establishment under a contract of employment and inter alia includes any person responsible for the management, supervision and control of the establishment, or in relation to an establishment run by or under the authority of any Department of the Federal Government or Provincial Government, the authority appointed in that behalf or, when no authority is appointed, the Head of the Department. It has not been suggested by the appellant-Bank that either the Executive Vice-President or the Senior Vice-President (Admn) was not the Head of Department. These two persons were impleaded in their capacity as senior most officers of the Principal Office of the National Bank of Pakistan and not in their personal capacity. The Executive Vice-President was the person who had issued the supplementary charge-sheet while the Senior Vice-President (Admn) had issued dismissal order. The Bank was therefore adequately represented. It cannot therefore be said that the Bank, as a corporate authority, was not aware of the proceedings' or had not consented to be represented through these two officers, for it was represented through the said officers by virtue of powers of attorney which these officers had received from the Bank itself and through powers of attorney given by the said officers to their Advocates to represent them as such Bank's representatives before the Lower Courts below. The objection therefore has no force and is rejected.
10. The first proviso to subsection (4) of section 1 of the Standing Orders Ordinance excludes the applicability of the said Ordinance 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 workmen employed therein. All the banks after their nationalization under the Banks Nationalization Act, 1974, have been held by various Courts as being carried on by or under the authority of the I Federal Government. In this connection Syed Irshad v. Habib Bank (supra), C Vice-President, National Bank of Pakistan v. Punjab Labour Appellate Tribunal (supra) and National Bank of Pakistan v. Nizamuddin Mehr (supra) may be referred.
11. It is also not disputed that the National Bank of Pakistan (Staff) Service Rules, 1973, were framed, with the previous approval of the Central Government, by virtue of powers granted to the appellant-Bank by virtue of section 32 of the National Bank of Pakistan Ordinance, 1949, and will have to be treated as statutory rules. These Rules were applicable till 1975 when the First Wage Commission Award was announced on 9-6-1975. By para 258 of the said award, the Commission laid down "uniform procedure in respect of disciplinary action and punishment to be followed by all the banks and financial institutions". It then framed and set out in the said para the said rules called the Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975, which thus became operative with the award. These Rules therefore displaced the appellant-Bank's 1973 Service Rules which were statutory. The Rules of 1975 were in any case not statutory and they continued in effect till the Second Wage Commission Award was announced on 24-4-1978. By para 26 of the said award, the 1975 Discipline Rules were made applicable only in cases where there were no statutory rules. By para 27, it affirmed it had inspected the National Bank of Pakistan (Staff)
Services Rules, 1973 and expressed the opinion that all natonalised Banks should model their Rules on the said basis. Whereas the 1975 Discipline Rules displaced the appellant Bank's 1973 Service Rules, the Second Wage Commission Award revived the 1973 Service Rules. Since the 1973 Service Rules stood revived, they obiviously can only be treated as statutory, as they had been earlier approved by the Central Government. In 1980 the appellant bank framed fresh rules called the National Bank of Pakistan (Staff) Service Rules, 1980. These thus displaced the 1973 Service Rules.
The 1980 Service Rules are obviously non-statutory, for the Central Government's previous approval was never obtained.
12. The first charge-sheet was served on the respondent on 5-2-1979. In respect of this charge- sheet, we would be governed by the appellant-Bank's, 1973 Service Rules, which were revived by the Second Wage Commission Award and which were statutory. The second charge-sheet was served on the respondent on 27-9-1981. In respect of this charge-sheet, the respondent would be governed by the 1980 Service Rules, which undoubtedly are non-statutory. The respondent could have moved the Labour Court with regard to the Second enquiry.
13. But even if I were to accept that by the Second Wage Commission Award, the appellant-Bank's old 1973 Service Rules revived as statutory rules, the respondent could have moved the Labour Court under section 25-A of the Ordinance in respect of the right guaranteed or secured to him by the said rules. Section. 25-A(1) permits a grievance petition to be filed by a workman 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. In Trustees of the Port of Karachi v. Abdul Ghani (supra), this Court treated the violation of statutory rules of the Karachi Port Trust as giving to the workmen remedy in respect of a right guaranteed "by or under any law", as stated in section 25-A(1) of the Ordinance. In Iftikhar Ahmad v. President, National Bank of Pakistan (supra), this Court treated the Wage Commission Award also as falling in the scope of the words "any award" as given in section 25-A(1) of the Ordinance, thus entitling employees of all the Banks governed by Wage Commission Awards to seeks redress of their grievance from the Labour Courts under the said section. In these circumstances, there can be no escape from the conclusion that the respondent's grievance petition was mantainable before the Labour Court and the objection of the appellant-Bank is therefore not well-founded.
14. As regards the contention that the respondent could not have approached the Labour Court direct, but should have moved a departmental appeal under the 1973 Service Rules, this Court in Trustees of Port of Karachi v. Abdul Ghani (1983 SCM R 769) was faced with the same contention as in this case, and held that notwithstanding the statutory service rules, even if it did provide a remedy, yet the provisions of the Industrial Relations Ordinance would over-reach the scope of the statutory rules and govern employer- workman relationship. This objection therefore has no force and is rejected.
15. The only question that now remains is the request of the appellant-Bank that it should be permitted to hold the enquiry once again against the respondent and that back benefits should be withheld, so that the grant of the same can be made dependant on the results of the fresh enquiry.
It is clear that the appellant-bank did not conduct the enquiry in the proper manner required by law. The omission from the charge-sheet of proper particulars of the misconduct imputed to the workman, the non-recording of the evidence against the workmen during the course of the enquiry, the failure to permit cross-examination of such witnesses, etc. Are some of the glaring instances which may vitiate a trial. The Enquiry Officer in the instant case simply recorded the statement of the respondent and did not examine any witness. The Labour Courts rightly set aside the dismissal of the respondent. The setting aside of the dismissal was basically due to want of compliance of legal formalities and procedural requirements on the part of the appellant-Bank. In this view of the matter, the Labour Courts should have made an observation that the employer was not precluded from taking fresh action against its employee in accordance with law. In respect of employees having charge or dominion over the employer's cash, securities and other valuable property, the breach of fiduciary relationship is serious matter. Re-inquiry into such matters should not be allowed to be foreclosed, just because the inquiry has been set aside on legal technicalities.
In such serious cases, the order of reinstatement should not be permitted to destroy the right of the employer after re-instatement to proceed against the employee, in accordance with the mode permitted by law. In this connection Glaxo Laboratories (Pak) Ltd v. Pakistan (1962 PLC 362) may be referred. I would, therefore, hold that the appellant-Bank did not lose its right. To hold a fresh inquiry, if it so desired, against the respondent in respect of the same charges on which the previous inquiry was found to be legally defective, in accordance with the mode permitted by law.
Whether it would like to exercise this right now, considering that almost ten years have passed and the respondent may have cleared his position or otherwise have established his credit, I would leave it to the good sense and judgment of the employer.
16. On the question of payment of back benefits, the rule laid down by this Court in Qadeer Ahmed v. Punjab Labour Appellate Tribunal (PLD 1990 SC 787) is that if the order of dismissal or removal has been set aside unconditionally, the back benefits have to be paid, whereas if the reinstatement is conditional and a departmental inquiry could still be made, then the entitlement can be withheld, till the final determination with regard to his conduct. In the instant case the dismissal was set aside unconditionally. Though the dismisssal has now been made conditional i,e, subject to any fresh enquiry which the bank may desire to hold, I would not like to disturb the order granting back benefits to the respondent, as many years have passed and it would now work great hardship on the respondent.
17. Subject to the observations contained in para 14 above, I would dismiss the appeal. There shall be no order as to costs.