' The petitioner. Who was Cashier with the respondent Bank was dismissed from service, which order was challenged by him before the Punjab Labour Court No,4, Faisalabad and was ordered to be reinstated vide order, dated 27-4-1989 without back benefits. Both the parties challenged that order by tiling appeals before the Punjab Labour Appellate Tribunal. On 26-9-1989, the appeal filed by the petitioner was dismissed whereas the appeal filed by respondent-Bank was accepted by the learned Labour Appellate Tribunal. This is a writ petition against the same, which arises in the background briefly stated below:--
2. A case F.I.R. No,37 of 1981 was registered on 25-3-1981 against the petitioner attributing breach of trust. He was arrested, confined to jail, was sent up for trial before the Special Military Court No,46 but was acquitted on 22-2-1984. He was, however, released from jail on 15-4-1985. On 8-7-1981 he had been charge-sheeted by the respondent-Bank and was dismissed on 10-12-1981 observing that his explanation was not satisfactory. It is stated that on his release from jail, he submitted a departmental appeal, dated 23-4-1985, having not favourable response to the same filed a civil suit, which was dismissed on. 28-1-1987. He then filed an appeal, which was withdrawn on 12-11-1987 from the Court of Additional District Judge in view of the judgment of the Supreme Court that the Labour Court had the jurisdiction in the matters of redressal of grievances of employees of Banks.
He then served a grievance notice and filed a petition before the Labour Court accompanied by an application under sections 5 and 14 of the Limitation Act. The petition was tried and heard by the labour Court, which accepted the same on 27-4-1989 directing reinstatement of the petitioner but declined the back benefits to him. As mentioned above, both the parties appealed against that order when the appeal filed by the petitioners that he was entitled to- the back benefits was dismissed and the appeal of respondent-Bank against his order of reinstatement was accepted by the Punjab Labour Appellate Tribunal, on 26-9-1989. The learned Labour Tribunal decided the matter mainly on the ground that he had approached the Labour Court much after the limitation, which could not be condoned.
3. It is contended by the learned counsel for the petitioner that soon after the registration of the case, the petitioner was arrested and sent to jail and on his release without wasting time, he placed his grievance petition before the Employer and as the position with regard to the jurisdiction of the Labour Court in such matters at that time was not clear, he filed a civil suit and soon after when the judgment in Iftikhar Ahmed and others v. President, National Bank of Pakistan and others (PLD 1988 SC 53), came to light and knowledge, appeal pending before the Additional District Judge was withdrawn and petition was filed before the Labour Court, which Court for adequate reasons condoned the delay. It is contended that the order of the Labour Court condoning the delay was not open to interference by the Punjab Labour Appellate Tribunal. Relies in this respect upon Naseem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others (1995 SCMR 1655). It is further contended that dismissal of the petitioner was illegal inasmuch as no inquiry was conducted into the allegations against him and that the order of dismissal was passed by the Vice-President of the Bank whereas the competent authority in his case was Senior Executive Vice-President. It is contended that the order passed by the Labour Court reinstating him in to service was perfectly justified and valid, which has been set aside by the learned Labour Appellate Tribunal on erroneous and illegal premises. Reliance is placed on Muslim Commercial Bank Ltd. v. Mahmood Ahmad Butt and others (1997 PLC 550). It is also contended that the petitioner was and is entitled to the back benefits on reinstatement into service. In support of this contention, the learned counsel relies on Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another (PLD 1990 SC 787), Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087) and General Manager, National Radio Telecommunication Corporation, Haripur District Abbotabad v. Muhammad Aslam and 2 others (1992 SCMR 2169).
4. On the other hand, the learned counsel for the respondent-Bank supports the order of the Labour Appellate Tribunal and contends that grievance petition was barred by time and the delay could not be condoned by the Labour Court, which order has been rightly interfered with by the Labour Appellate Tribunal. It is further contended that mere fact of acquittal from a criminal case does not wash away the allegation of misconduct as both proceedings can be taken independent of each other. According to him, the finding of fact recorded by the learned Labour Appellate Tribunal cannot be interfered with by -this Court. He relies on Muhammad Bashir v. Auditor General, Pakistan (1992 PLC (C.S.) 133), Allied Bank of Pakistan Limited v. Ejaz Ahmad Abbasi and another (1990 SCMR 1713), Talib Hussain v. Anar Gul Khan and 4 others (1993 SCMR 2177) and Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others (1996 SCMR 315).
5. Undoubtedly if condonation of delay in filing the petition before the Labour Court was not allowed by the Labour Court, the petition would have been time-barred. The petitioner had remained in jail till he was released therefrom on 15-4-1985, whereafter, he took up, the matter with his employer and then filed a civil suit. While his appeal against the dismissal of civil suit was pending before the Lower Appellate Court, judgment in the case of Iftikhar Ahmad and others (supra) was delivered by their lordships (15-4-1987), which gave right to the bank employees for approaching the Labour Court. This prompted the petitioner to withdraw the appeal and to approach the Labour Court by filing a petition under section 25-A of Industrial Relations. Ordinance, 1969. An objection had been raised before the Labour Court that the petition was time-barred. The Labour Court conscious of the same taking note of the events preceding the filing of the petition by the petitioner condoned the delay in instituting the same. It also came to the conclusion that the order of dismissal of the petitioner was void ab initio not having been passed by the competent Authority. In Irtiqa Rasool Hashmi v. Water and Power Development Authority and another (1980 SCMR 722) it was observed that the question whether limitation should not be condoned lies within the discretion of the authority before whom a matter is agitated and this discretion cannot be interfered with unless it has been exercised illegally or arbitrarily". In Water and Power Development Authority v. Zahoor Ahmad (1994 SCMR 960) the delay in tiling the appeal was condoned by the Service Tribunal and it was observed by their lordships that "the Tribunal had the jurisdiction to condone the delay, which it did" and the Court does not generally examine the question of condonation of delay. In Naseem Ahmad Chaudhry's case (1995 SCMR 1655), in which case the implication of the judgment of Supreme Court in Iftikhar Ahmad and others case (supra) came to be considered, it was observed that the conclusion of the Appellate Tribunal that "the delay was wrongly condoned by the Labour Court is not sustainable in law" and while allowing the appeal of the appellant/employee, the matter was remanded to the learned Tribunal for decision on merits.
6. From the abovementioned precedents, the principle deducible is that when a forum concerned condones the delay, it is not to be interfered with by the higher forum unless the exercise of such a discretion by the lower forum is found to be illegal and arbitrary. In the present case, the learned Labour Court had for sufficient and adequate reasons condoned the delay in filing the appeal by the petitioner. There was no illegality nor the approach of the Presiding Officer of the Labour Court was arbitrary which could warrant interference in appeal by the learned Labour Appellate Tribunal: Needless to mention that position with regard to the forum for grievances was somewhat obscure prior to the case of iftikhar Ahmad (supra).
7. It was found by the Labour Court that the petitioner being Cashier had been dismissed without inquiry into the allegations and that too by the Vice-President who was not the competent Authority. Admittedly the petitioner was a Cashier in the Bank. In Muslim Commercial Bank's case (supra) Mahmood Ahmad Butt who was a Cashier in the same Bank had been dismissed from service. He approached the Labour Court. His petition, however, was dismissed, but succeeded before the Labour Appellate Tribunal, when his appeal was accepted, reinstating him without back benefits. The said judgment of the Tribunal was challenged by both the parties in writ petition before this Court, which was dismissed. The parties then took up the matter before the Supreme Court. The contention of the learned counsel for Mahmood Ahmad Butt before their lordships was that Vice-President/Zonal Chief was not competent to dismiss him from service and accordingly it was held that" 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". This is how the Labour Court had viewed the matter and ordered the reinstatement of the petitioner but without back benefits. There was thus, no good justification to have interfered with such an order, of the Labour Court by the Labour Appellate Tribunal.
8. There is no cavil with the proposition that criminal prosecution and the departmental proceedings can be taken independent of each other, and such a contention does find support from the case of Muhammad Bashir (supra) (1992 PLC (C.S.) 133), Talib Hussain (supra) (1993 ,SCMR 2177) and Mir Nawaz Khan (supra) (1996 SCMR 315). In the present case, it is not acquittal of the petitioner by the Special Military Court itself for his reinstatement. The learned Labour Court had examined the matter on its merits and ordered his reinstatement. As mentioned above, the Labour Appellate Tribunal mainly considered the question of limitation and set aside the order of the Labour Court that the limitation should not have been condoned and did not advert to the question of competency of the person concerned in ordering dismissal of the petitioner. The order of the learned Labour Appellate Tribunal is, therefore, not sustainable.
9. The contention of the learned counsel for the petitioner that the Labour Court should have allowed the back benefits to the petitioner however, is not tenable in the facts and circumstances of the case. In Qadeer Ahmad's case (supra). it was observed that" where, However, the order of reinstatement is conditional, as was. In the case of the appellant that an enquiry could still be made into his conduct and his conduct was considered such as to call for a departmental enquiry, then the entitlement with regard to back benefits had necessarily to wait till the final determination with regard to his conduct. If he was found at fault then the competent authority could justifiably deny him part of the back benefits. Mere setting aside of the order of dismissal irrespective of whether it is set aside conditionally or unconditionally, would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits. Similarly the continuance of the enquiry on the same charges would also disentitle him, till the conclusion of the enquiry and the determination of the responsibility, to back benefits". The same principle has been followed in Muhammad ,Bashir and other's case (supra) (1991 SCMR 2087) and General Manager, National Radio Telecommunication Corporation, Haripur District Abbottabad (supra) (1992 SCMR 2169). In the present case, the Labour Court on consideration of the facts and circumstances of the case had taken the view that the petitioner had succeeded on technical points and was not entitled to back benefits. Such a view is eminently just and in consonance with the above precedents. He was thus, rightly declined back benefits. Much reliance was placed by the learned counsel for the petitioner on the judgment of their lordships in the case of Muslim Commercial Bank Ltd. (supra).
Keeping in view the identity of the matter to a great extent, I am inclined to pass a similar order as in the cited case, that "if the authorities of the bank are still anxious to proceed against the petitioner according to law, it would be open to them to take action against him by giving a reasonable opportunity of defending himself".
10. This petition is accepted declaring the order of Punjab Labour Appellate Tribunal as illegal and without lawful authority and restoring that of the Labour Court No,4, Faisalabad leaving it open for the respondent/bank to proceed against the petitioner in accordance with law if so desired. No order as to costs.