' ZIA MEHMOOD MIRZA (CHAIRMAN).---This order will dispose of the instant Appeal bearing No,12(02) of 2000-K as also three other connected Appeals Nos.12(03) of 2000-K, 12(04) of 2000-L and 12(05) of 2000-K as, common questions of law and facts are involved in these appeals.
2. Facts giving rise to the present appeal and three connected appeals are absolutely identical. All the four, appellants in these appeals while posted -in different branches of the respondents-Bank (Muslim Commercial Bank) in Karachi were charge-sheeted vide letter of charge, dated 26th March, 1999 separately addressed to each appellant wherein it was alleged that on 22nd March, 1999 at about 3-30 p.m. They alongwith a group of people of approximately 12 to 15 in number "entered forcibly in the Room of Chaudhry Mumtaz Hassan, Senior Vice-President and General Manager, North City and East Circle, Karachi and started shouting and used abusive language and also threatend Mr. Ch. Mumtaz Hussain for dire consequences." This conduct, according to the letter of charge, was willful insubordination and an act highly subversive of discipline and the appellants were accordingly called upon to show-cause within three days of receipt of the charge-sheet to why disciplinary action against them be not taken. The appellants submitted their reply to the charge-sheet denying the allegations made against them. Their explanation it appears, was not found satisfactory and the respondent-management, therefore, issued letters of inquiry on 7th April, 1999 to all of them. Apprehending that the enquiry into the allegations, leveled against them would result in their dismissal/discharge, removal or termination, all the four appellants filed separate petitions of identical nature before the learned Member, Karachi Bench under section 22-A(8)(g) of I.R.O., read with Regulations 32 of N.I.R.C. (P&F) Regulations, 1973 and section 15 of I.R.O., alleging that they were active Members/office-bearers of MCB staff Union/CBA and the management with a view to punish them for their Trade Union activities intend to remove them from service on the basis of false and fabricated charges which, according to the appellants, was an act of unfair labour practice. It was accordingly prayed by the appellants in their petitions that the respondent be restrained from passing any adverse order against them or dismissing, discharging, removing or terminating their services by way of unfair labour practice. A direction was also sought to be issued to the respondent not to commit acts of unfair labour practice and to conduct themselves in a manner so as to avoid occurrence of unfair labour practice. Main petitions were also accompanied by applications under Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973 seeking interim prohibitory orders.
3. The learned Member Karachi Bench issued interim prohibitory orders on 21-4-1999 in all the four cases filed by the appellants directing the respondents to maintain status quo in respect of their service. These interim orders were later recalled by the learned Member and the stay applications were dismissed vide order, dated 8-4-2000, impugned in this appeal. Main petitions were, however, ordered to be fixed for evidence of the appellants on 3-6-2000. It appears that after the stay applications were dismissed and the interim prohibitory orders were recalled by 'the learned Single Member, the respondent-Bank dismissed all the appellants from service on 10-4-2000 and took an objection in this appeal through miscellaneous applications that the appellants having been dismissed from service, their petitions under section 22-A(8)(g) of I.R.O., as also the present appeals have become infructuous and the same were accordingly sought to be dismissed.
4. We have heard the learned counsel for the parties at considerable length on the question as to whether after the dismissal of the appellants from service, they could file/maintain the appeals against the orders of Single Bench recalling the interim stay orders and whether the present appeals in the circumstances have not been rendered infructuous. Submission of the learned counsel appearing for the respondent-Bank, of course, was that the appellants had filed the petitions before the Single Member apprehending their dismissal/removal from service on the basis of the charge-sheets served on them and they prayed for issuance of prohibitory orders against any adverse action against them by way of dismissal/removal from service. It was contended by the learned counsel that now when the appellants have been dismissed from service, their prayer for prohibitory/restraint orders has become infructuous. According to the learned counsel, the appellants shall now have to either amend their petitions pending before the learned Single member or file fresh petitions in an appropriate forum to challenge the orders of their dismissal from service. Learned counsel appearing for the appellants, on other hand, vehemently contended that the right of appeal provided in the statute was available to the appellants when they filed their petitions before the Single Member and the action of recalling the interim stay orders during the pendency of the petition does not affect their statutory right. It was further contended by the learned counsel that the action of the respondent dismissing the appellants from service can even otherwise be undone by this Commission in exercise of the powers available to it under N.I.R.C. (P&F) Regulations, 1973 framed under section 22-F of the I.R.O.
Learned counsel for the appellants also argued that the action taken by the respondent- Management viz the dismissal of the appellants from service soon after the interim prohibitory orders were recalled only reinforced the complaint of the appellants that they were subjected to unfair labour practice. It was pointed out by the learned counsel for the appellants that the impugned order of the learned Single Bench was assailed by the appellants in Constitutional petitions filed in the Sindh High Court and in those petitions, the operation of the impugned order of the Single Member was suspended by the High Court on 14-4-2000 which order, according to the learned counsel, had the effect of restoring status quo ante. This submission was sought to be supported be contending that even though the appellants were dismissed by the respondent- Bank on 10th April, 2000, they received the salaries for the months of April and May, 2000. This conduct of the Bank, in the submission of the learned counsel, annulled the effect of the dismissal orders dated 10-4-2000 and the Bank has not passed any fresh dismissal orders after May, 2000.
' In reply, the learned counsel for the respondent Bank submitted that the appellants did not disclose in their Constitutional petitions that they had already been dismissed from service and obtained the stay orders from the High Court by suppressions this material fact. As regards the payments of salaries for the months of April, and May, 2000, it was contended by the learned counsel that these payments were made by the Bank out of sheer deference for the stay order issued by the High Court. Learned counsel pointed out that the Constitutional petitions filed by the appellants were dismissed as withdrawn on 23-5-2000 and on that very day, the Bank again issued letters of dismissal confirming therein the previous dismissal order issued on 10-4-2000.
Learned counsel stated that no salaries were paid to the appellants thereafter. Repelling the objection of the learned counsel for the Bank that the appellants suppressed the factum of their dismissal in the High Court. The learned counsel for the appellants took the stand that the appellants came to know of their dismissal from a service only when the Bank filed counter- affidavit in the High Court. Before that, they never received the orders of their dismissal.
5. We have given our anxious consideration to the submissions made by the learned counsel for the parties. There can be no cavil with the proposition canvassed by the learned counsel for the appellants that the right of appeal provided in the Statute when the appellants filed their petitions before the Single Member would be available to them to challenge the impugned order recalling the interim stay order but in the changed situation, namely the dismissal of the appellants from service, this proposition was of no avail to them. It is an admitted position that the appellants invoked the jurisdiction of this Commission under section 22-A(8)(g) of I.R.O. To seek prohibitory relief against their apprehended dismissal/removal from service as a result of the disciplinary proceedings initiated against them and on the allegations made by them in their petitions under sections 22-A(8)(g), they were granted interim relief restraining the respondent-Bank from taking any adverse action against them but now that the adverse action has been taken against the appellants and they have been dismissed from service, the relief sought by them in their original petitions itself has become infructuous. With their dismissal from service, a new cause of action has accrued to the appellants and as rightly contended by the learned counsel for the respondent Bank, they shall have to either amend their petitions so as to challenge the orders of their dismissal or they may file fresh petitions in appropriate forum. In fact, the appellants have already filed the applications seeking amendment of their petitions pending before the learned Single Member. It is so stated by them in their counter-affidavit submitted in these appeals on 17-1-2001 and also admitted by their learned counsel during the course of hearing of these appeals,
6. In the aforesaid view of the matter, we hold that after the dismissal of the appellants from service, they could not have filed an appeal against the impugned order recalling the interim stay orders as the relief of prohibitory injunction claimed by them in their main petitions before the Single Member had become nugatory and consequently they could neither claim nor could they be granted any interim prohibitory relief in the appeal. That being so, we uphold the objection taken by the respondent-Bank that these appeals have become infructuous and same are accordingly dismissed as such. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.