This writ petition has been directed against the judgment dated 18-5-1989 passed by Punjab Labour Appellate Tribunal, Lahore in appeal against the judgment dated 3-11-1988 given by the Punjab Labour Court No.6, Rawalpindi in a petition under section 25-A of the Industrial Relations Ordinance, 1969, moved by the petitioner.
2. Briefly the facts stated are that the petitioner while working as Senior Cashier in Gularana Gali Branch of National Bank of Pakistan, Murree was served with a charge-sheet followed the appointment of an Inquiry Officer who having conducted inquiry into the charges against the petitioner found him guilty and in consequence thereof he was dismissed from service vide order dated 10-9-1985. The departmental appeal filed by the appellant against his dismissal from service was rejected without notice to the petitioner and further the order of rejection of appeal was not communicated to him. About three years later in January, 1988 in consequence to the service 'of a grievance notice by the petitioner on 12-2-1988 to the respondent, he filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 in the Labour Court No.VI, Rawalpindi with a separate application under section 65-B of the said Ordinance read with section 5 of the Limitation Act, 1908 for condonation of delay in filing the grievance notice as well as the petition under section 25-A of the Industrial Relations Ordinance, 1969. The Departmental Appeal against the dismissal from service filed by him on 10-4-1986 was dismissed on 18-4-1986 without intimation to the petitioner who through his own source obtaining the copy of the said order brought the same to the notice of the Labour Court. However, the respondent bank also placed on record a copy of the said order on 17-3-1987. The law laid down in the case titled Vice---President, National Bank of Pakistan v Punjab Labour Appellate Tribunal (1985 PLC (Lahore High Court 1053) that the employees of National Bank were not entitled to invoke the provisions of Labour Laws against their dismissal having overruled by the Supreme Court of Pakistan in Iftikhar Ahmad and others v. President, National Bank of Pakistan and others (PLD 1988 SC it was declared that the Bank employees were entitled to 25-A of the Industrial Relations he Labour Court in the was only the said forum Court after detailed dismissal of the petitioner and directed him to be re-instated in' service with back benefit.
3. The respondent being aggrieved of the acceptance of the petition under section 25-A of Industrial Relations Ordinance, 1969 by the Labour Court and the reinstatement of the petitioner in service filed an appeal before the Labour Appellate Tribunal. The learned Tribunal having taken the view that non-availing of the remedy before the Civil Court during the intervening period i.e. From the date of the dismissal from service to the pronouncement of judgment by the Supreme Court ceased the petition under section 25-A of Industrial Relations Ordinance, 1969 the-barred and consequently dismissed the grievance petition. The petitioner has assailed the judgment of the Labour Appellate Tribunal before this Court through this Constitutional petition.
4. The charge levelled against the petitioner was that he having received an amount of Rs. 1,200 for deposit in Saving Bank Account No.757 did not post the same in cash register and failed to deposit the amount in question in the relevant account. Subsequently after the lapse of a period of about 12 days depositing Rs.1,000 in the above said account he settled the matter of temporary embezzlement with the depositor through return of Rs.200 outside the Bank.
5. According to the petitioner, he received Rs.1,200 from account--holder in to packets containing different notes and as per his instruction after deposit of Rs.1,000 in his account, returned the balance amount of Rs.200 to him in good faith with no intention of embezzlement. The allegation of embezzlement of cash having not proved and no actual loss caused to the Bank, the learned Labour Court finding the charge groundless accepted grievance petition. The Appellate Tribunal with following observation in para. 4 of the judgment maintained the order of re-instatement of petitioner in service:-- "If the grievance notice and the grievance petition had not been the-barred, the respondent had a good case for reinstatement because no opportunity of defence was given since he did not state that he did not want to produce any defence and that no second show-cause notice was served."
6. The Tribunal, however, felling in error held that delay in filing the petition under section 25-A of the Industrial Relations Ordinance, 1969 was not condonable and consequently having observed that the failure of the petitioner to avail the remedy of filing civil suit till 12-2-1988 made him disentitled to take the benefit of law laid down by the Supreme Court on the subject and dismissed the grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 as the-barred.
7.I have heard the learned counsel for the parties and gone through the record carefully.
8. There is no cavil to the proposition that the petitioner as Bank employee was not entitled to invoke the provision of section 25-A of the Industrial Relations Ordinance, 1969 before the law laid down by the Supreme Court of Pakistan in Iftikhar's case (supra). The petitioner under the existing legal position at the the of his dismissal from service undoubtedly could knock the door of Civil Court through a civil suit but the limitation for such suit being six years under Article 120 of the Limitation Act, 1908 he was under no legal obligation to file such a suit shortly after dismissal from service or before the pronouncement of judgment in question by Supreme Court of Pakistan. This is noticeable that at the the when the petitioner become entitled to approach Labour Court under the law laid down by the Supreme Court, he was still within limitation to file the civil suit. The departmental appeal against the removal from service having filed within limitation and also rejected without conveying the decision thereon to the petitioner, could be treated as grievance notice for the purpose of limitation as the decision on the same taken by the Bank on 6-4-1986 was not conveyed to the petitioner till after filing the grievance petition under section 25-A of the I.R.O., 1969. The filing of grievance petition on 12-2-1988 after publication of the judgment of Hon'ble Supreme Court on the subject and coming to the knowledge of petitioner was proper and legal in terms of section 25-A.Of the Industrial Relations Ordinance, 1969 and the same being within the could not be dismissed treating it the-barred on the artificial ground that in the intervening period, petitioner did not avail the remedy before the Civil Court. The remedy in terms of provision of section 25-A of I. R. O., 1969 having made available through the judgment of Supreme Court, the remedy of civil suit for damage, prior to this change in law could still be availed at the the of removal ,of bar of filing grievance petition under section 25-A of I.R.O. The view taken by Lahore High Court in the case reported as Vice-President, National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1985 PLC 1053 having reversed by the Supreme Court in Iftikhar's case (PLD 1988 SC 53) the Bank employees become entitled to invoke the provision of section 25-A of the I.R.O., 1969 and, therefore, the petitioner still being within his right to file the civil suit, was entitled to file an application under section 25-A of the Ordinance, 1969. The law laid down by the Supreme Court does not create any acception to disentitle the petitioner from taking benefit of the same and he could not be non-suited on the ground that before filing petition under section 25-A of the I.R.O., 1969, he did not file the civil suit.
9.It is established law that the condonation of delay on sufficient ground having made in exercise of judicial discretion in proper manner by a competent Court is not interfered and questioned by an Appellate Court unless it is arbitrary or suffered from some serious legal infirmity. The law prevalent at the the of termination of service of the petitioner that the employees of nationalized Banks could not invoke the provisions of 8 section 25-A of I.R.O., 1969 having overruled by the Supreme Court in Iftikhar Ahmed's case (PLD 1988 SC 53) an individual grievance could thereafter be brought to the Labour Court. The relevant portion of the judgment in the above case is reproduced hereinafter:-- "There is no merit in this contention. So far as filing of grievance petition is concerned there is no specific provision in the ordinance which may be taken to support the distinction spelt out by the learned counsel. If the intention had been that the employees of institutions organized on all- Pakistan basis should approach the National Industrial Relations Commission alone for redress of their grievance there would have been some indication in the Ordinance itself. Not only there is no such indication in the Ordinance itself, the provisions of section 25-A which adumbrate the circumstances in which a Labour Court may be moved for redress have been extensively worded. It may perhaps be of interest to note here that even in respect of grievances arising out of unfair labour practices, curbing of which is a specific function of the Commission, the jurisdiction of the Labour Courts has not been ousted. However, that may be, there seems to be no justification for holding that an employee whose terms are governed by an award made by the Wage Commission cannot seek redress for his grievance before a Labour Court."
The Hon'ble Supreme Court of Pakistan in case titled Naseem Ahmed Chaudhry v. Chairman, Punjab Labour Appellate Tribunal (1995 SCM R 1655) held at page 165,9 of the said judgment as under:- "It is a well-settled law that where a Court possessed the jurisdiction to condone the delay, the order of such a Court/Tribunal either condoning the delay or refusing to condone the delay will not ordinarily be interfered with by the Appellate Court."
It was further held at page 1660 that; "We are clearly of the opinion that the condonation of delay by the Labour Court on an application under section 5 of the Limitation Act, which was applicable to the proceedings by virtue of section 65-B of the Ordinance, was neither arbitrary nor illegal so as to call for interference in appeal by the Appellate Tribunal."
The same question having been dealt with by the Supreme Court of Pakistan in an other case namely Water and Power Development Authority v. Zahoor Ahmed (1994 SCM R 960) repelled the contention that the delay was wrongly condoned by the Service Tribunal and yet in another case Irtiqa Rasool Hashmi v. Water and Power Development Authority and another (1980 SCM R 722) declined to interfere in the order of Service Tribunal refusing to condone the delay.
The Tribunal having failed to appreciate that the condonation of delay by the Labour Court was not arbitrary or illegal but it was condoned in view of the law declared by the highest Court of the country. This must not be forgotten that non-observance of law declared by the Supreme Court of Pakistan or, interpreting the same different to its letter and spirit would amount not to follow the same as binding force. The learned Appellate Tribunal while proceeding on wrong premises dismissed the petition under section 25-A of I.R.O as the-barred. Similar view that to refuse or allow the condonation of delay in proper manner by the Tribunal of a competent jurisdiction is not interferable was taken in Irtiqa Rasool Hashmi's case (supra) (1980 SCM R 722) and consequently the apex Court did not approve the interference of Appellate Court in such matters. The condonation of delay in the circumstance of the case being a matter of exercise of the discretion by the Labour Court and it having exercised in a proper manner could not be reversed without showing that discretion was exercised illegally or arbitrarily. The petitioner undoubtedly immediately after coming to know about his entitlement to approach the Labour Court under section 25-A of I.R.O., 1969 for redressal of his grievance without further loss of the filed grievance petition before the Labour Court and, therefore, the condonation of delay by the Labour Court in filing the petition under section 25-A of I. R.O. 1969 by virtue of section 5 of Limitation Act, 1908 read with section 65-B of I.R.O., 1969 suffering from no legal defect was not interferable in appeal by the Appellate Tribunal. Proper exercise of discretion being not challengeable in appeal and providing a valid ground for interference, the judgment of the learned Labour Appellate Tribunal being inconsonance with law laid down by the Supreme Court shall be of no legal consequence.
The Labour Court having found the charge leveled against the petitioner groundless and not based on sound material reinstated the petitioner in service with back benefit by accepting his grievance petition. The appellate Tribunal having made strong observation that the petitioner had a good case for reinstatement if his petition would have been within the confirmed the finding of the Labour Court of re-instatement given therein in favour of the petitioner.
For the foregoing reasons, the judgment of the Labour Appellate Tribunal in appeal is declared against law and of no legal consequence as a result thereof the judgment passed by the Labour Court shall hold the field. This writ petition is accordingly allowed with no order as to costs.