' The first two Constitutional petitions are directed against the judgment dated 11-7-1990 of respondent No,1 whereby the appeal of the bank was dismissed as incompetent while findings on merits, whereby employee was reinstated with back benefits, were reversed. This way both the parties have challenged the same order of respondent No,1, therefore, these petitions are being decided together. While the case of bank and worker in the other two writ petitions is exactly parallel to the first two writ petitions. The cases of the two employees of A.B.L. Were decided together by the Labour Court as well as Labour Appellate Tribunal. The only point of distinction is that Muzaffarul Hassan, workman, party in first set of petitions, was dismissed from the bank service while services of Ashiq Hussain, party in other set of petitions were terminated., The other legal and factual controversy is exactly the same, therefore, all She four writ petitions are being decided by this single judgment.
2. The brief background of these writ petitions is that Muzaffarul Hassan and Ashiq Hussain were officers in Grade-II of the A.B.L. And were posted as Accountants in the bank. The allegations against them were of embezzlement of amount and for which a criminal case was registered against them, which was transferred to a Special Military Court, which convicted them vide order dated 27-11-1985 and sentenced them to 3 years' R.I. The bank after the arrest of the said officers in the criminal case decided to initiate disciplinary proceedings against them. The result was that Muzaffarul Hassan was dismissed from service vide order dated 24-11-1981 while the services of the other respondent were terminated vide order dated 10-9-1984. Each of them after release from the jail proceeded to serve the bank with grievance notice and thereafter filed grievance petition under section 25-A of the I.R.O., before the respondent No,2 on 9-12-1987. The main petition was accompanied by an application under section 5 of the Limitation Act. The Bank contested both the petitions. The Labour Court recorded evidence and after hearing the arguments accepted the petitions vide order dated 21-12-1989. The result was that the employee was reinstated in service with back benefits. This order was assailed by the bank through an appeal before respondent No,1, who dismissed the appeal as incompetent on the ground that the same has not been field by proper person while on the merits the findings of the Labour Court were reversed. It was held that the services of the employee were terminated legally after completing legal formalities, therefore, order was fully justified.
3. It was in this background that both the parties have filed the above Constitutional petitions. The same were admitted to hearing and notices issued to respondents. The bank and the employee have appeared and contested the petition of each other while respondents Nos.1 and 2 did not appear in spite of service, therefore, they were proceeded ex parte.
4. The learned counsel for the petitioner argued that the bank was the respondent in the grievance petition the bank through attorney holders officers of bank was competent. The learned counsel who represented the bank before the Labour Court filed the appeal as instructed. There are no formalities prescribed in the I.R.O. As to presentation and signing of the memorandum of appeal unlike an appeal under Civil Procedure Code. In this behalf, he has referred to sections 25-A and 37 of the I.R.O. And section 5 of the Bank Nationalization Act, 197 and relied on The Thal Development Authority v. Nisar Ahmad Qureshi PLD 1962 Lah. 830, Shadoo Muhammad Khan v. Ganmoon etc. 1989 MLD 4624, Forbes Forbes Campbell & Co. Ltd. Etc. v. Habibur Rehman etc. 1982 SCMR 651, Managing Director, Lyalipur Cotton Mills, Faisalabad v. Labour Appellate Tribunal, Lahore etc. 1990 PLC 514 and Mst. Azra Begum v. Piran Ditta PLD 1967 Lah.
807. It is argued that when the employer has an option then it may terminate the services of the workman without enquiry instead of holding enquiry and dismissal from service. In this behalf, reliance is placed on Gordhandas v. Water and Power Development Authority (WAPDA) and another 1989 SCMR 14 and Pakistan Cycle Industrial Cooperative Society Ltd. v. Muhammad Javed and another 1982 PLC 275.
5. On the other hand, the learned counsel for the respondent argued that the appeal can be maintained by the 'employer' only, who was Circle Executive in the case of respondent No,3. The learned counsel in this behalf has referred to sections 25, 37, 49 and section 2(8) of the I.R.O. And placed reliance on the Labour Court No,2 and another PLD 1976 Lahore 783, Joseph Bhatti v. Punja Urban Transport Corporation, Rawalpindi 1980 PLC 234, Gulistan v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1982 PLC 1007, Forbes Forbes Campbell & Co. Ltd., Karachi and 3 others v.
Habibur Rehman and 2 others 1982 SCMR 651, Zonal Chief, Habib Bank Limited v. The Punjab Labour Appellate Tribunal, Lahore and 3 others 1989 PLC 515, National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi 1992 PLC 86, National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal 1993 SCMR 94 and The General Manager, Pakistan Railways, H.Q. Office v.
Muhammad Hafeez 1994 PLC 153. It is added that the appeal before respondent No,1 was governed by the provision of I.R.O. And the provisions of C.P.C. Including Order XLI would not apply. The learned counsel in this behalf has referred to Hari Khemu Gawali v. The Deputy Commissioner of Police, Bombay and another PLD 1957 SC (Ind.) 90, Pir Muhammad and 9 others v. Chairman,\\ Punjab Labour Appellate Tribunal and 2 others 1980 PLC 793, Packages Ltd. Pir Muhammad and 11 others 1982 SCMR 716, Balm Woollen Mills v. Chairman, Industrial Court, West Pakistan PLD 1966 SC 498 and Brooke Bond Pakistan Ltd. v. Second Sindh Labour Court, Karachi and another PLD 1973 Karachi 189. On merits it was argued that respondent No,1 after holding the appeal incompetent was ill-advised to record findings on merits as well. It is submitted that the decision on merits is against law and facts on record. In this behalf, it is added that the order of dismissal of the employee from service was not passed by the competent Authority and reference was made to Serial No,12(c), Appendix I. It was argued that the Disciplinary Committee was not competent to pass the order. It was added that the memorandum of appeal was signed by only Maqbool Haider.
This fact alone rendered the appeal incompetent. It was argued that the appeal was filed on 6-2- 1990, therefore, was barred by limitation as the last date for filing the appeal was 4-2-1990. It was added in this behalf that respondent No,1 failed to notice that the date of institution of the appeal was changed by the officials of the Tribunal at the behest of the Bank officials. It was argued that the Standing Orders Ordinance is applicable unless rules are statutory, therefore, the charge-sheet served on respondent No,3 was time-barred and the impugned order of dismissal was liable to be set aside on this ground alone.
6. The learned counsel for the petitioner while summing up the arguments submitted that the Appointing Authority and the authority competent to dismiss from service in the case of the employees of Allied Bank are two different, therefore, the argument that the order of dismissal should have been passed by the Appointing Authority is clearly misconceived. It is argued that the case of the respondent was covered by Serial No,12(b) as the employee was covered in Category-I as per Rule 6. It was submitted that the award by Commission determined the terms and conditions of service of the employees of the Bank and that has overriding effect in view of the provisions of section 38-A and the learned counsel in this behalf has relied on the judgments in the cases of Abdul Majid v. Garrison Engineer, East, Rawalpindi and others 1985 PLC (C.S.) 1053 and M.
Saleem Raza v. Muslim Commercial Bank Ltd., Karachi and 2 others 1989 PLC 663. It is argued that respondent No,3 cannot maintain grievance petition as he had been dismissed from service. The learned counsel in this behalf has referred to Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213.
6. The learned counsel for respondent No,3 in reply to the last point submitted that even the dismissed worker is covered by the definition of worker as contained in section 2(28) of the I.R.O.
And can maintain grievance petition. The learned counsel in this behalf has referred to Iftikhar Ahmad and others v. President, National Bank of Pakistan PLD 1988 SC 53. It is argued that the judgment in the case of Muhammad Saleem (supra) relied by the learned counsel for the petitioner is clearly distinguishable.
7. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, relevant provisions and precedent cases. The Writ Petitions Nos.7395/90 and 7396/90 are by the bank against the judgments of respondent No,1 dated 11-7- 1990 whereby its appeals were dismissed on the ground that the same were incompetent having not been filed by competent person. The appeals are provided under section 38 of the I.R.O. And according to the subsection (4) the Tribunal shall follow such procedure as may be prescribed. It is not the case of any of the parties before me that any rules/regulations have been framed under subsection (4) of section 38 of the I.R.O. While dismissing the appeals as incompetent, has referred to any procedure which was violated by the bank in filing the appeals. Order XLI, C.P.C. In contradistinction with section 38 of the I.R.O. Provides for form of the appeal, detailed procedure for signing and presentation of a memorandum of appeal. In the absence of any provision as to form, signing and presentation of memorandum of appeal it is not possible to knock out appellant on the ground that the appeal was either not drawn or filed properly. This is not all. Even under the C.P.C. Where the forms etc. Have been provided still appeal cannot be thrown out on the technicalities such like defective signing of the memorandum of appeal or its presentation. These have been treated as rectifiable, curable defects and now the view of the Hon'ble Supreme Court is that in such cases the appellant should be directed to rectify the defect of supply the omission. In this behalf, reference can be made to Ismail and another v. Mst. Razia Begum and 3 others 1981 SCMR 687, Liaqat Hayat and 5 others v. Muhammad Sarwar alias Feroz Ali etc. 1985 SCMR 1386, Ghulam Qadir and others v. Abdul Sattar and another PLD 1984 SC 12, Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9, Messrs Nabi Bakhsh & Sons v. Pakistan PLD 1969 Kar. 210, PLD 1969 Kar.
566. The Hon'ble Supreme Court confirmed this view while accepting C.A. No,91/92 titled "Province of Punjab v. M/s. Dominion Construction" dated 22-6-1992 wherein the appeal was dismissed by this Court for defect in its presentation. The petition was accepted and the matter was remanded to this Court for decision on merits after allowing opportunity to the appellant to supply the omission and rectify the defect.
' This Court too examined this matter at some length in the case of M.D., Lyallpur Cotton Mills (supra) relied by the learned counsel for the petitioner and with reference to section 25-A and section 34 it was held that the appeal can be maintained by any party aggrieved. While in the case of Mst. Azra Begum (supra) appeal filed by Advocate on verbal instructions of a counsel duly authorised to file appeal, was held competent. The question was, also, examined in the case of Shadoo Muhammad Khan (supra) and it was concluded as under:-- "16. The result is that the defects in pleadings, applications, memorandum of appeal with regard to presentation, signing and verification are technical irregularities relating to matter of procedure and same cannot furnish basis for rejection of plaint, application or memorandum of appeal. The same can be rectified at any stage of the proceedings."
' This is in line with the view of the Hon'ble Supreme Court, as noted above.
9. The controversy can be looked from another angle. The worker himself has impleaded the bank as respondent through four different functionaries of it, therefore, the bank was not only aggrieved person by the order of the Labour Court but being respondent in the grievance petition could legally maintain an appeal before respondent No,1 . The appeal was filed through Malik Muhammad Afzal Khan, Advocate and power of attorney was signed by Muhammad Maqbool and Sajjad Haider, officers and attorneys of the bank while memorandum was signed by Muhammad Maqbool and the said Advocate. This was sufficient compliance of the formalities because it is not requirement of law or rules that memorandum of appeal under section 38 of the I.R.O. Should be signed by the appellant, therefore, the appeal was competently filed. Malik Muhammad Asghar, Advocate candidly admitted that there is no provision in the I.R.O. That employer should file the appeal but went on to argue that this can be spelled out from the sections 25-A(1), 37(3) and 49 read with section 2(iii)(viii). I am afraid that it is not possible to accept this argument without doing violence to the plain words of the statute. The learned counsel while raising this argument clearly suggested of reading something in the provisions of the I.R.O., which in fact is not there. The appeals of the bank before respondent No,1 in both the cases were competent and the order of respondent No,1 treating the same as incompetent is bad in law and liable to be set aside.
10. The next argument was that the appeals were time-barred. The same were in fact filed on 6-2- 1990 but with the collusion of the staff of respondent No,1 the date was shown as 4-2-1990. It was added that the employee filed cross-objections and raised this point before the Tribunal but the same has not been dealt with. Before proceeding any further I would deal with the legal position of so-called cross-objections. There is no provision in the I.R.O. For cross-objections while according to the Order XLI, Rule 22, C.P.C. Any respondent though he may not have filed appeal from any part of the decree still may not support it on any of the grounds decided against him by the Court below but can file cross-objections which he could have taken by way of appeal, provided he has filed such objections in the Appellate Court within one month from the date of service. In other words a respondent instead of filing an appeal could raise the same question through cross- objection. It is, therefore, clear that before the respondent could maintain objections he should be aggrieved of part of the decree or order while in the present case the Labour Court accepted the grievance petitions of the workers and allowed their reinstatement in service with back benefits, therefore, the worker could not maintain an appeal against any part of the order of the Labour Court. The cross-objections were not competent. It is also clear from the text of the cross- objections that in fact the same were about the filing of the appeal, therefore, the same at the best could be treated as legal objections to the competency of the appeal.
11. Now coming to the limitation. The appeal was in accordance with the endorsement of the office of the Tribunal was filed on 4-2-1990 at 1-45 p.m. Respondent No,1 before deciding the appeal proceeded to record the statement of the worker as well as Muhammad Maqbool officer of the bank. The learned counsel for respondent No,3 in this behalf referred to the statement of Muhammad Maqbool, AW1, according to which, he signed the power of attorney on 4-2-1990 at Jhelum at about 2-00 or 3-00 p.m. There is nothing as to the signing of the memorandum of appeal. He also stated that Malik Muhammad Afzal Khan, Advocate has not come to the Zonal Office in his presence. This cannot give rise to the presumption that the appeal was filed on 6-2- 1990, at the best it could be said that the memorandum of appeal was presented without power of attorney. This would not be fatal and no legal consequence as held in the earlier portion of this judgment.
12. The workers could have insisted at that juncture for decision of the alleged forgery committed in the office of the Tribunal while treating the appeal within limitation. This was not done. It is not a question of law but question of fact, therefore, cannot be gone into for the first time in Constitutional jurisdiction. Moreover, the presumption of correctness is attached to the judicial record.
13. Now coming to the legal objection raised by the learned counsel for the petitioner as to the competency of the grievance petition. The learned counsel in this behalf has referred to the judgment of the Hon'ble Supreme Court in the case of Muhammad Saleem (supra). On the other hand as noted above, learned counsel for the worker relied on the earlier judgments of the Hon'ble Supreme Court in the cases of Abdul Ghani and Zahoor Ahmad (supra). The earlier cases were noted by the Hon'ble Supreme Court in the judgment of Muhammad Saleem (supra). The relevant portion of the conclusion reads as under:- "24. In the result, the appeal is accepted, the judgment of the High Court dated 29-3-1992 is set aside and the respondent's petition under Article 199 of the Constitution is dismissed. The parties are left to bear their own costs."
' Therefore, respectfully following the above view of the Hon'ble Supreme Court it is held that respondent No,1 could not maintain the grievance petition and the same was liable to be dismissed.
13. This brings the discussion to W.Ps. Nos. 7648 and 8001 of 1990 filed y the two workmen against the bank against the judgment of the Tribunal despondent No,1, subject-matter of the other two writ petitions. The grievance as that respondent No,1, after holding that the appeals of the bank in the two apses were not competent, should not have proceeded to record findings on merits. It is not possible to agree with this view. The Hon'ble Supreme Court d this Court repeatedly emphasised the need to decide the entire matter instead f piecemeal decisions especially in the appeals because this would obviate the requent remands of the matter by superior Court. The present case could serve a classical example to make the point clear. Had the Tribunal in this case cted, as being argued by the learned counsel for respondent No,3, and ismissed the appeal on the preliminary objection of incompetency and left the merits untouched then the result would have been that after acceptance of the rift petitions of the Bank, the matters were remanded to respondent No,1 this me to decide the appeals on merits. There is nothing wrong with the approach f respondent No,1 in this behalf. The objection is without any merit.
14. On merits it was argued on behalf of Muzaffarul Hassan, respondent o.3, that the order of dismissal has to be passed by Executive Vice-President, personnel Division, Karachi. The argument is clearly misconceived and runs under to the provisions of Serial No,12(b) of Schedule read with Rule 6 of the off Service Rules, 1981. He was covered by clause (b) of Serial No,12, erefore, the order was rightly passed by the Disciplinary Committee. It was argued on behalf of Ashiq Hussain that his services were terminated illegally and mala fide because the bank failed to bring home the charges against him. On the other hand, the learned counsel for the bank argued with reference to the judgments in the cases of National Bank of Pakistan, W.P. No, 4531/85, Gordhandas and Pakistan Cycle Industrial Cooperative Society (supra), that the employer can always exercise the option .Of termination when available under the law or rules. Suffice here it is to refer to judgment of the Hon'ble Supreme Court in the case of Agricultural Development Bank of Pakistan and 2 others v. Muhammad Sharif 1988 SCMR 597. The relevant portion reads as under:- "7. It is clear from these two distinct provisions of Staff Services Regulations applicable to the respondent that two distinct powers were available to the competent Authority and there was no bar expressed or implied to the competent Authority invoking either or any one in particular. In the case of Abdul Karim v. West Pakistan Province PLD 1956 SC 298 which none of the Courts has noticed it was held by this Court that an employee whose services could be terminated on one month's notice could on the basis of a notice be removed though charge-sheet had been served with regard to his misconduct and an enquiry was in the offing. It was held that it is open to the dismissing authority not to have recourse to the power of dismissal which is a drastic step and which affects subsequent employability' of this public servant but to terminate service on one month's notice in accordance with the condition of his employment. Again in the case Water and Power Development Authority v. Muhammad Ali 1987 SCMR 261, it was held that "if the law provides ,the appellate authority with two different modes for terminating the services of its employees the mere fact that it has to begin with, elected to act under one mode would not in the absence of a bar in the law preclude it from adopting the second mode at a later stage."
' In the case of Ashiq Hussain-respondent, his services were terminated vide order dated 10-9-1984 with one month's notice as permissible under the Service Rules. The reason was his arrest by the Police in criminal case and absence from office since 11-7-1984. The admitted position is that he was also convicted for 3 years subsequently by the Special Military Court vide order dated 27-11- 1985 on the allegations of embezzlement. The order of termination was, therefore, fully justified.
16. Respondent No,1 while reversing the findings recorded by respondent No,2, on merits, proceeded to hold as under:- "(4) The evidence produced during the enquiry has been perused by me. It proved the charge. All the witnesses stated that the respondent had received cash and without entering it in the bank record had signed the pay-in-slips. Failure on the part of the respondent to enter the amounts in the books of the bank and his act of issuing the receipts without doing so amounted to misconduct. As the receipt of the amount was not entered in the books, it was easily embezzled. It was the duty of the respondent to enter the amounts in the books. Second show-cause notice was also served upon the respondent before awarding the punishment of dismissal, therefore, all necessary legal requirements were fulfilled before he was condemned."
' The above findings are fully supported by the evidence on Record. No misreading or non-reading of material evidence has been pointed out, therefore, the findings on merits are confirmed.
17. The result is that under section 25-A of the I.R.O. a workman cannot maintain a grievance petition in respect of his dismissal, which is not result of an industrial dispute. Let copy of this judgment be sent to Law and Justice Division, Government of Pakistan, to introduce necessary amendment if real purpose was to provide a forum to the workman in all situations.
18. The upshot of the above discussion is that the impugned orders of respondents Nos.1 and 2 dated 11-7-1990 and 21-12-1989 are declared without lawful authority by accepting this writ petition.
The result is that the grievance petition of respondent No,3 is dismissed. There is no order as to costs.