' MUNIR A. SHEIKH, J.---By this common judgment, we propose to decide Civil Petitions Nos.226-L and 446-L of 2001, as question of law and facts are identical in both of them.
2. These petitions are directed against the judgment dated 15-12-2000 of the Lahore High Court through which Constitutional petition filed by Abdul Jabbar, respondent in C.P. No,226-L of 2001 against the orders, dated 26-9-1989 of the Labour Appellate Tribunal has been accepted and the said order set aside and that of the Labour Court dated 27-4-1989 restored.
3. The facts of the case as given by the learned counsel for the petitioner-bank during the arguments shortly stated are that Abdul Jabbar, respondent was working as cashier when he was arrested on 8-4-1981 in a case of defalcation registered with Police Station, FIA, Lahore.
Simultaneously, disciplinary proceedings were also initiated against him and he was dismissed from service on 10-12-1981 when he was in jail after arrest. In the criminal case, however, the trial Court through judgment dated 22-2-1984 acquitted the respondent on the ground that the charges against him had not been proved. After his release on 15-4-1985, the respondent on 2-9- 1985 filed suit before the Civil Court, Faisalabad against the order of the petitioner-bank of his dismissal from service. An objection was raised that the suit was not competent as the relationship between the parties was that of master and servant, therefore, rejection of the plaint was sought.
The trial Court on 28-1-1987 upheld the said objection and rejected the plaint of the suit of the respondent. The respondent on 4-3-1987 preferred an appeal before the learned District Judge, Faisalabad. The question as to whether a bank employee could approach the Labour Court under the Labour Laws was subject-matter of many petitions pending in different High Courts. In March, 1987, this Court declared that grievance petition by a bank employee before the Labour Court under I.R.O. Was competent and maintainable. The petitioner in April, 1987 appeared before the learned District Judge in the said appeal and produced copy of the said judgment of this Court and brought it to the notice of the Court that the respondent's remedy was to approach the Labour Court and the said appeal was not maintainable, as such, should be dismissed or returned whatever the case may be. Learned counsel for the respondent got dates in order to examine the principle laid - down in the said judgment as to whether the same was applicable to the present case. The respondent on 15-11-1987 withdrew the appeal and on the same date filed a grievance petition before the Labour Court. Admittedly, he had earlier issued a grievance notice under section 25-A of the I.R.O. On 26-6-1985.
4. The petitioner contested the said petition before the Labour Court both on merits and also on other objections inclusive of limitation. The objection against the order of dismissal of respondent's service was that the same had not been passed by a competent authority. According to the respondent, the competent authority in the case of Cashier was the Senior Vice-President and not the Vice-President who had passed the said order.
5. The Labour Court came to the conclusion that the order of dismissal of the respondent from service had not been passed by the competent authority, therefore, the same was void. The delay in filing the said petition was condoned by holding that the circumstances of this case constituted sufficient grounds for condonation of delay but the order of dismissal of service of the petitioner was set aside on the said short ground, therefore, the respondent was not granted back benefits after reinstatement in service as a consequence thereof. It was, however, observed that the competent authority may, if so, desire proceed in accordance with law against the respondent. The petitioner filed appeal before the Appellate Labour Tribunal against the said order which was accepted through judgment dated 10-6-1989. The findings of the Labour Court that it was a case of sufficient grounds for condonation of delay was set aside and the grievance petition of the respondent was ordered to be rejected/dismissed on the ground of limitation.
6. The respondent filed Constitutional petition before the Lahore High Court against the said judgment of the Labour Appellate Tribunal which has been accepted through the impugned judgment dated 15-12-2000 against which leave is sought.
7. Learned counsel for the petitioner-bank submitted that the High Court in the impugned judgment has held that the Labour Appellate Tribunal was not vested with the jurisdiction to interfere with the discretion exercised by the Labour Court in the matter of condonation of delay, therefore, the setting aside of the findings by it was not sustainable which is not legally correct as even in discretionary matters, the Appellate Tribunal had the jurisdiction to examine the finding.
8. There is possibly no cavil with the proposition of law as canvassed by the learned counsel for the petitioner. The exercise of discretion in any matter within its competence' by a Court or Tribunal is always subject to correction by the appellate forum available against the orders of the said Court and if in appeal, it was found that the discretion had been exercised either arbitrarily, whimsically or on tonsideration of the extraneous matters, the same could be interfered with. The argument that in this case, the findings of the High Court amounted to hold that the Labour Appellate Tribunal had no jurisdiction to interfere with the discretionary order of the Labour Court is however, not correct. While dealing with the question as to what is the scope and limit of jurisdiction of Labour Appellate Tribunal to interfere in the discretionary matter, the High Court in para. 6 of the impugned judgment observed as under:-- "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 form for grievances was somewhat obscure prior to the case of Iftikhar Ahmad (supra)."
9. It is clear from a bare reading of this paragraph that the High Court came to the conclusion that interference in the matter of exercise of discretion by the lower Court could be made if the same had suffered from illegality or arbitrariness.
10. The present case, when order of dismissal from service of the respondent was made in 1981, the general perception was that the bank employees could not approach the Labour Court. The respondent remained in jail for about five years and acquitted in the criminal case. He filed suit before the Civil Court the plaint of which was sought to be rejected. The petitioner obtained an order of rejection of the plaint on the ground that the relationship between the parties was of master and servant. During the pendency of the appeal before the learned District Judge against the said order of rejection of plaint, in the year 1987, judgment was delivered by this Court holding that bank employees could approach the Labour Court for redressal of their grievances. This judgment was produced before the learned District Judge by the petitioner's learned counsel. The appeal was withdrawn on 12-11-1987 and grievance petition was made before the Labour Court on the same date on the basis of the grievance notice which had already been issued on 26-6-1985.
11. Learned counsel for the petitioner frankly conceded that he would only press the question of limitation with regard to the period' intervening between the date on which the petitioner produced copy of judgment of this Court delivered in April, 1987 before the learned District Judge and the date on which the appeal was withdrawn by the respondent on 12-11-1987. According to him, there is no explanation for making delay in withdrawing the appeal after the production of judgment passed by this Court before the learned District Judge, therefore, grievance petition was rightly held to be barred by time from that point of time by the Labour Appellate Tribunal. The Labour Court, we find, while determining the question of condonation of delay or otherwise took into consideration the cumulative effect of all the circumstances prevailing in this case as observed above. The petitioner remained in jail for about five years. He filed suit the plaint of which was rejected against which his appeal was pending. Copy of the judgment passed by this Court in April, 1987 no doubt was produced before the learned District Judge to contend that the appeal was not maintainable but learned counsel for the respondent got dates for examining the said judgment and the legal consequences flowing therefrom which right could not be denied to him. As regards the dates given by the learned District Judge in the appeal, the learned District Judge was also equally to be blamed, therefore, delay if any, made for the withdrawal of the appeal was also attributable to the Court itself, for the learned District Judge before whom the judgment, had been produced, was also obliged under duty to give effect to it but he did not pass any order to this effect. Besides, the order of dismissal of the respondent from service had been found to have been passed not by competent person, therefore, if in the light of these circumstances, it was held that it was a fit case for condonation of delay, the Labour Court did not commit any illegality nor acted arbitrarily or whimsically and the same can safely be held to have been passed on relevant considerations.
12. Learned counsel for the petitioner further argued that the order of dismissal from service of the respondent though was passed by the Vice-President but he had also been appointed as Zonal Chief on transfer as additional duty. In support of this he has placed on record copy of his transfer order dated 30-3-1981. The findings of the Labour Court that order of dismissal of the respondent from service had not been passed by an officer competent or empowered to do so, were challenged in appeal before the Labour Appellate Tribunal on the ground that the said officer though by virtue of his status determinable in relation to the post held by him was Vice-President but he was holding power of attorney from the bank, as such could exercise the powers on behalf of the bank therefore, his order could not be struck down on the ground of having not been passed by competent officer and not on the ground that he had been posted as Zonal Chief, therefore, we are not inclined to entertain the plea at this belated stage by producing the order on loose paper that the officer who had passed the order was also holding the post of Zonal Chief. If such an order was in existence and available, the same would have been made the basis for challenging the findings of the Labour Court in the grounds of appeal before the Labour Appellate Tribunal. The plea taken in the grounds of appeal as noted above was that the officer was holding power of attorney from the bank which plea was also raised in another case filed against the order of dismissal of service of the employee of the petitioner but was rejected in the case reported as Muslim Commercial Bank Ltd. v. Mahmood Ahmad Butt and others (1997 PLC 550). Learned counsel for the petitioner does not dispute that in the said reported case, a plea that by virtue of power of attorney, the officer was competent to pass order was not accepted, therefore, the same is hereby repelled in, this case also.
13. The Labour Court has observed that the competent authority may proceed against the respondent afresh if grounds are available by initiating fresh disciplinary proceedings against which exception has been taken by the learned counsel for the respondent. He relied upon two judgments reported as The Vice-President (Admn.), National Bank of Pakistan and others v.
Basharat Ali and others (1996 SCM R 201) and Attaullah Sheikh v. WAPDA and others (2001 SCM R 269) to argue that in a case where an employee was acquitted in a criminal case, no useful purpose would be served to proceed against him departmentally. Each case is to be decided on its own merits. In the present case, respondent might have been acquitted from the criminal charges of actually sharing the mens rea i,e,, criminal act of defalcation and sharing the money subject- matter of the criminal case but being Cashier, he might be found to be negligent or not vigilant otherwise in discharge of his duties on account of which the happening of the said incident could be prevented or avoided for which he may be proceeded against through disciplinary proceedings, therefore, the observations made by the Labour Court that the petitioner may proceed if sufficient material is available against the respondent departmentally does not suffer from any illegality.
14. The connected petition has been filed by the respondent Abdul Jabbar against the order of the Labour Court declining back benefits on his reinstatement in service as a consequence of the judgment passed by the said Court. His appeal before the Labour Appellate Tribunal was dismissed through judgment dated 26-9-1989 alongwith the appeal of the Bank and his prayer as regards back benefit has also been rejected by the High Court.
15. We are of the considered view that in the facts and circumstances of this case, order of declining back benefit to the respondent is perfectly proper and valid based on relevant considerations. The discretion in the matter has been exercised with due care and caution and on correct application of law.
16. For the foregoing reasons,, we do not find any force in both the petitions which are accordingly dismissed and leave refused.