1. MUKHTAR AHMAD JUNEJO, J.---Civil Appeals Nos.745 of 1994 and 747/94 were filed with leave of this Court by Muslim Commercial Bank Limited (hereinafter mentioned as the Bank) and its Circle Executive and Zonal Chief assailing to judgments dated 11-5-1994 of the Lahore High Court deciding Writ Petitions Nos. 1260 of 1989, No. 1261 of 1989, No. 1262 of 1989 and No. 1463 of 1989. Said judgments have also been assailed with leave of this Court in Civil Appeal No.746 of 1994 filed by Mahmood Ahmad Butt and Civil Appeal No.748 of 1994 filed by Pervaiz Akhtar Khokhar. All these appeals are being disposed of under this judgment.
2. Mahmood Ahmad Butt, appellant in Civil Appeal No.746 of 1994, joined the Bank as Cashier, in which post he was confirmed on 31-7-1978. On 17-8-1981 he was charge-sheeted for having connived in commission of fraud by Manager and other staff of Hajiabad Branch of the Bank. In particular he was alleged to have issued to undated receipts for Rs.4,00,000 and Rs.2,00,000 to enable one Ashraf to utilize said amount. Mahmood Ahmad Butt replied the charge-sheet and there was departmental inquiry. On 10-12-1981 he was issued final show-cause notice and ultimately he was dismissed from service under an order dated 2-2-1982. He submitted departmental appeal on 17-2-1982 and on the same date he also sent grievance notice. His departmental appeal was rejected and such letter was issued by the Bank on 7-3-1982. Ultimately, Mahmood Ahmad Butt filed grievance petition in the Labour Court at Faisalabad and the same was dismissed under an order dated 28-7-1988. Mahmood Ahmad Butt challenged said order in the Punjab Labour Appellate Tribunal (hereinafter mentioned as the Tribunal) under an appeal, which was accepted on 12-12-1988. Learned Tribunal ordered Mahmood Ahmad Butt to be reinstated in service, but did not allow him back benefits. Said order of reinstatement was challenged in the High Court by the Bank under Writ Petition No. 1261 of 1989. In respect of non- allowing of back benefits, Mahmood Ahmad Butt challenged said order in the High Court under Writ Petition No. 1463 of 1989. Both the petitions were heard together and were dismissed under the impugned judgment.
3. Pervaiz Akhtar Khokhar, appellant in Civil Appeal No.748 of 1994, joined service of the Bank on 4-9- 1970 as Assistant. He was promoted on 1-7-1973 as Officer Grade-III (after his confirmation as Assistant) and on 1-1-1976 as Accountant. He was given further promotion on 1-1-1977. He was charge-sheeted on 17-8-1981 for contributory negligence, the benefit of which was taken by Muhammad Ashraf and other staff of Hajiabad Branch of the Bank committing fraud of Rs.39,47,000. At the relevant the Pervaiz Akhtar was said to be Incharge Main Account in the Circular Road Branch of the Bank. He replied the charge-sheet on 27-8-1981 and then there was domestic inquiry. On 10-12-1981 Pervaiz Akhtar was issued final show-cause notice, which he replied. Ultimately he was dismissed from service on 26-1-1982. His departmental appeal was rejected under a letter dated 7-3-1982 and his grievance notice was replied on 8-2-1982. On 17-2- 1982 he filed in a Labour Court at Faisalabad a grievance application which was dismissed on 28- 7-1988. Dismissal of the grievance application, was challenged through an appeal before the Tribunal, which accepted the same on 11-12-1988 and ordered reinstatement of Pervaiz Akhtar Khokhar without allowing him back benefits. Said judgment was challenged in the Lahore High Court in to writ petitions, one of which bearing No.1260 of 1989 was filed by the Bank challenging reinstatement of Pervaiz Akhtar, while the other one bearing No.1462 of 1989 was filed by Pervaiz Akhtar against non-allowing to him of the back benefits. Both the writ petitions were heard together and dismissed by the High Court under the impugned judgment dated 11-5-1994. Said judgment has been assailed in Civil Appeals No.747 of 1994 and No.748 of 1994.
4. Mr. Muhammad Asghar Malik, learned Advocate appearing for Pervaiz Akhtar appellant in Civil Appeal No.748 of 1994, raised the following points:
(i) That according to M.C.B. Staff Service Rules said appellant could be dismissed only by the Senior Executive Vice-President, Administration Division Head Office or the President, but not by Zonal Chief or the Vice-President;
(ii) That the said appellant was "workman" and thus competent to move the Labour Court against his dismissal under section 25-A of I.R.O.
5. Learned counsel conceded that the findings of fact were not pressed before the Tribunal or before the High Court.
6. Mr. S.M. Tayyab, learned counsel for Mahmood Ahmad appellant in Appeal No.746 of 1994 raised a similar contention that the Vice-President/Zonal Chief was not competent to dismiss the said appellant, that no fraud was allegedly committed by the said appellant, and that the Bank did not establish before the Tribunal or the High Court that the said appellant was, competently dismissed.
7. Learned counsel for Pervaiz Akhtar and Mahmood Ahmad stated at the bar that they would not press their appeals for back benefits, if the reinstatement ordered by the Tribunal was maintained.
8. Mr. Ataur Rehman Shaikh, learned counsel for the Bank/appellant in Appeals Nos.745 of 1994 and No.747 of 1994, raised the following points:--
(i) That the to appellants were dismissed by the competent authority although the letters of dismissal were signed by the Vice-President posted in Zonal Office of the Bank;
(ii) That the M.C.B. Staff Service Rules were not statutory and violation of the same would not give legal cause of action to the employees of the Bank affected by said Rules; (i.e) That the signatory of the dismissal letters was authorised to order dismissal under a power of attorney;
(iv) That the appellants in Appeals No.746 of 1994 and No.748 of 1994 were not entitled to back benefits as their reinstatement was on technical grounds; and
(v) That the appellant in Appeal No.748 of 1994 was not a "workman" as per the duty roster.
9. If the person who has signed the dismissal letters, was not competent to dismiss the employees in question, such disability cannot be removed by authorising him under a power of attorney to exercise the power of dismissal. The High Court is correct in observing that the power of attorney Exh.R-15 issued by the Bank in favour of the officer who passed the dismissal order, has no relevance.
10. In his evidence Pervaiz Akhtar Khokhar appellant in Appeal No.748 of 1994 deposed that at the relevant the he was Officer Grade-III in Circular Road Branch but his duty was not supervisory in nature and that he was working under the Sub-Manager and the Manager. This evidence was not rebutted by the Bank. In view of the nature of duty performed by Pervaiz Akhtar he was a workman as defined by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance.
11. In case of his dismissal, he was entitled under Standing Order 12(3) to move grievance application in the Labour Court under section 25-A of I.R.O. Such right of the worker is not affected by the fact that he was governed by rules which were not statutory, because under section 25-A of I.R.O. He could invoke jurisdiction of the Labour Court in respect of any of his secured or guaranteed rights.
12. Reference was made to Item No. 12(b) of the Muslim Commercial Bank (Staff) Service Rules, 1981, under which Senior Executive Vice-President of the Head Office or the President of the bank can pass order of dismissal. In the instant case the to appellants have not been dismissed by the Senior Executive Vice-President of the Head Office or by the President. The Tribunal and the High Court appear to have taken correct view, that the appellants before us could not have been dismissed by anybody inferior in rank to the Senior Executive Vice-President of the Head Office. On merits, neither the Tribunal has said anything nor the High Court.
13. As regards the back benefits, the same have been disallowed by the Tribunal as well as by the High Court. The High Court has relied on the cases of General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and 2 others 1992 SCM R 2169 and Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCM R 2087. The latter case finds special mention in the leave granting order. It was made clear in the case of Muhammad Bashir that the back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside and that the workman has to assert orally that he was not gainfully employed elsewhere during the period from the date of termination till the date of reinstatement. In the case of Muhammad Aslam 1992 SCM R 2169 nothing was available on the record to show that the employee was not doing any job, after he was dismissed and that he did not say a word about whether he was employed or not employed after his services were terminated and it was held that such employee was not entitled to back benefits.
14. In the present case the to appellants did not give an iota of evidence to show that they were not pursuing any avocational activity after dismissal. The claim of back benefits was not pressed by the learned counsel for the employees. , In our view, the appellants of Appeals No.746 of 1994 and No.748 of 1994 were rightly reinstated and were rightly disallowed the back benefit. However, since they were not completely exonerated by any of the Courts which dealt with their case, hence in view of the observations made in the case of Islamabad Club v. Punjab Labour Court No.2 PLD 1980 SC 307, we make it clear that if the authorities of the Bank are still anxious to proceed against said appellants according to law, it would clearly be open to them to take action against them on the basis of evidence already recorded but by giving them a reasonable opportunity of defending themselves. There shall be no order as to costs.