' The afore-said appeals which are directed against the judgment dated 11-12-2000 passed by Punjab Labour Court No,6, Rawalpindi whereby the grievance petition filed by Syed Nasir Abbas Naqvi, petitioner was allowed and he was reinstated in service without back benefits and I propose to dispose of both the appeals by a single judgment because these relate to the same case and are directed against the same judgment.
2. Allied Bank of Pakistan Limited (Appellant) is a company incorporated under the provisions of Companies Ordinance, 1984 and is operating as a Banking-Company within the ambit of the Banking Companies Ordinance, 1962, Syed Nasir Abbas Naqvi petitioner who is respondent before me was employed as Officer Grade-III and Attorney at Trunk Bazar Branch, Rawalpindi of the appellant-Bank. During the course of his employment the respondent appeared in the Banking Diploma Examination: Summer, 1999 from Rawalpindi Examination Centre. On scrutiny of his answer book in the subject of Higher Accountancy, his handwriting in the answer book was found different from that of the other three answer books as well as his entry form. The Examination Committee of the Institute, after holding the enquiry found the respondent guilty of using unfair means in the examination. The Institute considered the case of the respondent decided to impose penalty in accordance with the prescribed rules of the Institute. On receipt of complaint from the Institute the appellant Bank issued a charge-sheet dated 15-7-2000 to the respondent. He submitted his reply which was found unsatisfactory. Therefore, an enquiry was ordered. The petitioner/ respondent Syed Nasir Abbas Naqvi participated in the enquiry proceedings and obligedly admitted his guilt.
He, however, in an independent enquiry, was adjudged as guilty of alleged misconduct and was consequently dismissed from service vide order dated 19-10-1999. Being aggrieved by his dismissal from service, the petitioner/respondent (Syed Nasir Abbas Naqvi) approached Punjab Labour Court No,6, Rawalpindi by filing a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, assailing the order of his dismissal stamping it as mala fide and void.
3. The respondent Banking Company submitted its reply statement taking various objections therein and making factual assertions. It was vehemently contended on behalf of the respondent Bank that no grievance notice was given in this case hence the grievance petition was not competent and maintainable; that the petitioner was not a worker/workman within the definition of Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It was also alleged that the petitioner/respondent had unambiguously and unequivocally confessed his guilt in the presence of witnesses hence there was no need to substantiate the allegation of misconduct by producing oral or documentary evidence of unimpeachable character.
4. Adverting to the first moot point regarding the non-service of grievance notice, the learned trial Judge (Labour Court) observed that since the petitioner had filed a departmental appeal Exh. P-6 on 11-11-1999 which is admitted by the bank, the same can validly be considered as grievance notice and with this observation overruled the objection.
5. As regards the status of the petitioner/respondent Syed Nasir Abbas Naqvi, the learned trial Judge also disposed of this moot point summarily by holding that the petitioner is a workman in the light of judgments reported in 1992 SCM R 1891 and 1999 PLC 302.
6. Taking up the third objection raised by the appellant-bank regarding the non-applicability of Labour Laws i,e, Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 to the petitioner's case and the incompetency of grievance petition on this score alone, the learned Judge resolved this controversy by observing that Allied Bank of Pakistan Limited which is a huge concern banking concern having more than 900 branches in various parts of Pakistan, as admitted by R.W.1 in his examination-in-chief, the petitioner/respondent (Syed Nasir Abbas Naqvi) cannot be deemed to be an employee of a particular branch only in which he was lastly posted. He was of course an employee of Allied Bank of Pakistan Limited hence the grievance petition was competent by all canons of law.
7. Coming to the merits of the case the learned Judge observed that there was no denying the fact that the petitioner/respondent did appear in the Banking Diploma Examination conducted by the Institute of Bankers Pakistan and he adopted unfair means in the examination and he was disqualified from appearing in such examination for a period of five years. This was an adequate and sufficient punishment for him and if the matter had been referred to the bank by the Institute it was not fair on the part of the appellant-bank to proceed against the appellant visiting him with the extreme penalty of dismissal of service because it amounted to punishing him twice for the same office because the punishment awarded to the petitioner by the appellant-bank is repugnant to the provisions of Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 and is, therefore, a nullity in the eye of law and in view of the above discussion the petitioner/ respondent's grievance petition was allowed vide the impugned judgment dated 11-12-2000 and he was ordered to be reinstated in service. However, his prayer for back benefits was refused for two-fold reasons; first, that the grievance petition was allowed purely on technical ground and secondly, that there was no material on record rendering the petitioner entitled to back benefits.
8. Feeling aggrieved of the order of reinstatement the appellant-bank has come up in appeal and the refusal of back benefits has prompted the petitioner/respondent (Syed. Nasir Abbas Naqvi) to file cross-appeal (No,RI-10/2001) and I propose to dispose of both the appeals by a single judgment because common question of law and facts are involved in them and they are directed against the same judgment.
9. The learned counsel appearing for Syed Nasir Abbas Naqvi (respondent) has supported the impugned judgment to the extent of the order of reinstatement by alleging that the petitioner is a worker/workman within the definition of labour laws; his departmental appeal can well be considered and legally amounts to grievance notice; the controversy of application of Industrial Relations Ordinance, 1969 and the Standing Orders Ordinance, 1968 in the instant case has been correctly decided by the Court below and deserves the seal of confirmation of this Court. As regards the last question of principle of double jeopardy, the learned counsel supported the finding of the Court below on the grounds elicited in the impugned judgment that the petitioner/respondent who had already been disqualified from appearing in the aforesaid examination by the Institute and this disqualification amounted to a Major penalty could not have been put to peril twice for the same offence, hence the appellant was not justified for visiting the petitioner/respondent with extreme penalty of dismissal which is in contravention and in violation of Article 13 of the Constitution.
10. As regards withholding of back benefits, the learned counsel for the petitioner/respondent assailed it on two-fold grounds; first, that the petitioner's dismissal has been found illegal and void by the Court below. There was, therefore, no ostensible reason for withholding the back benefits and, secondly, that the petitioner/respondent (Syed Nasir Abbas Naqvi) remained jobless from the date of his termination till reinstatement. He had specifically mentioned this fact in his grievance petition and had reiterated the same before the Labour Court hence refusal of back benefits was absolutely illegal and wholly unwarranted. On the other hand, the learned counsel for the appellant-bank has raised the following contentions:
(i) That no grievance notice was served upon the employer as contemplated under the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 hence the grievance petition was incompetent.
(ii) That the petitioner was employed as Officer and Attorney of the appellant-bank. He was holder of duly executed power of attorney (a copy of power of attorney was produced as Annexure 'A' with the reply statement and marked as Exh.R-1). Even the petitioner/ respondent frankly admitted in his cross-examination that he was a power of attorney holder. He was also suggested in his cross- examination that he was not doing any manual or clerical work and he stated that his job was of supervisory nature. The petitioner/respondent though alleged in his examination-in-chief that he was doing manual or clerical work. However, he failed to adduce any evidence whatsoever that he was performing any manual of clerical duty. He was, therefore, not a worker/workman within the definition of Labour Laws and was not competent to seek the indulgence of the Labour Court.
(iii) The Labour Laws i,e, Industrial Relations Ordinance, 1969 and the Standing Orders Ordinance, .1968 were not applicable to the petitioner/respondent hence his grievance petition was not maintainable because at the time of the commission of misconduct, the petitioner/respondent was employed at Trunk Bazar Branch Rawalpindi and this is what has been frankly admitted by him. The total number of employees at Trunk Bazar Branch Rawalpindi were 14 in those days as is evident from the attendance register of that branch, a copy of which was produced and marked as Exhs.R-2 and R-3. Out of these 14 only 7 or 8 were workmen. Even at Satellite Town Branch where the petitioner was transferred after commission of misconduct the number of workmen were not more than eight. The rest were officers who were not doing any manual or clerical work. The petitioner admitted in his cross-examination as follows: 'It is correct that premises of every branch is separate and that every branch has got its own manager. It is correct that every official works in his own branch. I do not know State Bank gives sanction of every branch'.
' The learned counsel further added that it is a well-settled law that each branch of a bank is a separate establishment. Since the Trunk Bazar establishment, Rawalpindi was manned with less than 20 workmen, the provisions of Industrial Relations Ordinance and Standing Orders Ordinance were not applicable to the aforesaid branch."
11. It is now well-settled that a dismissed workman whose dismissal has not led to an industrial dispute or has not been in consequence of an industrial dispute is not a workman for the purpose of any proceedings under the Industrial Relations Ordinance, 1969. However, where the Standing Orders Ordinance, 1968 is applicable, a dismissed workman can maintain a grievance petition in respect of his dismissal in view of specific provision contained in Standing Order 12. The petitioner/respondent was employed at an establishment where Standing Orders Ordinance was not applicable, the petitioner/respondent being a dismissed person and being no longer a workman was not entitled to maintain his grievance petition. Reliance was placed on 1980 PLC 514, 1980 PLC 655, 1988 PLC 573, 1987 PLC 846 and 1998 PLC 172. Last but not the least point raised with an exuberant skill was that the grievance petition was time-barred and the learned counsel proved it with methematical calculation that the petitioner/respondent who was dismissed on 19-10-1999 filed his girevance petition on 30-6-2000. He was required to come before the Labour Court on 27- 1-2000. However, taking a lenient and charitable view, as the Courts do, in cases like the instant one, if the petitioner/respondent appeal to the Bank Authorities is considered as a reply to a presumed notice then he was required to approach the Labour Court on or before 24-6-2000. His petition was thus time-barred. It is significant to note that the learned counsel for the appellant- bank did not press the application of section 2-A of Service Tribunal Act, 1973 and the dismissal of the grievance petition on this score also.
12. Having given my careful consideration to the aforesaid arguments propounded by the learned counsel for the parties I propose to dispose of all the moot points in seriatim,
13. Coming to the first moot point regarding the service of grievance notice before invoking the jurisdiction of Labour Court through grievance petition. The petitioner/respondent has alleged in para. 6 of his girevance petition as under:-- "Feeling aggreived by the said order of dismissal (Annexure 'F') the petitioner submitted grievance notice in the shape of appeal before the respondent No,1 on 11-11-1999. Copy of which is attached as Annexure 'G'. The said grievance notice/appeal was not accepted and its reply was given to the petitioner by the respondent No,2.'
' The title and contents of this so-called grievance notice (which in fact was an appeal) deserves special mention which is reproduced as under: "Subject: Appeal against the order of dismissal"
' Prayer: In view of the above it is, therefore, respectfully requested that this appeal may kindly be accepted and I may be reinstated to service with full back benefits."
' The appellant-bank categorically denied the service of any grievance notice before filling the grievance petition and Mr. Iftikhar-ul-Haq Qureshi who appeared as R.W.1 on behalf of the appellant-bank asserted that no grievance notice was received by the bank. No question was put to this witness. Even the petitioner/respondent simply said in his statement that he filed departmental appeal/grievance notice to the respondent. It is thus clear from the statement of the aforesaid P.W. And the relevant material referred to above that no grievance notice was served upon the bank. In all probability when the petitioner realised this defect, he in order to cover up this loophole, started calling his departmental appeal dated 11-11-1999 Exh.P-6 as grievance notice as well.
14. Service of grievance notice by the employee upon the employer before filing grievance petition is a sine qua non and its non-service is fatal for the grievance petition as held in various celebrated judgments of the superior Courts including this Tribunal and I quote 1999 PLC 466. In this case this Tribunal termed the grievance notice as vital and condition precedent for filing of grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 and the grievance petition was dismissed simply on the ground that there was no proof of service of grievance notice. Even otherwise it is a well-settled law that departmental appeal to the authority cannot be treated as grievance notice. Reliance is placed on 1982 PLC 389, 1982 PLC 616 and 1982 CLC 920.
15. Adverting to the most pivotal and controversial point which needs a thorough probe and serious consideration is the status of the petitioner/respondent. As per his contention he is a workman within the definition of Labour Laws. His stand and status is seriously disputed by the appellant- bank and it has been vehemently contended that the petitioner/respondent was employed as an officer and attoreny of the bank. He was holder of a duly executed power of attorney. A copy of power of attorney was produced as Annexure A with the reply statement and marked as Exh. R-1. In his cross-examination the petitioner admitted that he was a power of attorney holder. A suggestion was put to him in his cross-examination that he was not doing any manual or clerical work, the petitioner stated that "my job was of supervisory nature". The petitioner although in his examination-in-chief stated that he was doing manual or clerical work. However, he failed to adduce any evidence whatsoever that he was performing any manual or clerical duty.
16. Having given my careful consideration to the aforesaid argument I see sufficient weight in it. It has been repeatedly held by the superior Courts of this country that an officer of a Batik who is a power of attorney holder is not a workman. In this regard I cannot help borrowing a very wise observation of the Hon'ble Supreme Court of Pakistan reported in 1985 SCM R 1511 at page 1514 and I quote the relevant portion: "It would thus be noticed that in determining the status of an employee i,e, deciding as to whether or not he is a ' workman' what is to be seen is the overall nature of the duties assigned to the person in question and the main or primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties, because even a person employed at the highest managerial or supervisory level has some times to perform functions or do some work which may be termed as manual or clerical. No doubt, in the present case some of the duties assigned to the appellant were of a rowine nature and he was required to maintain fixed and short term deposit registers and was also required to prepare balance sheets, salary vouchers and bills etc. But it is pertinent to note that he had also been given a power of attorney by the respondent-bank authorising him to perform, jointly with an other attorney of the bank, a large number of functions which are clearly of managerial nature. The power of attorney is available at page 102 of the Paper Book and it would be useful to reproduce some of the paragraphs thereof to show the nature of the functions entrusted to him thereby:--"
' In the above judgment the Hon'ble Supreme Court numerated various functions entrusted to Grade III Officer who was holding a power of attorney of the bank. In paragraphs Nos.3 to 9 and 11 the Honourable apex Court reproduced the duties and functions of the said Bank Officer which are quite identical with the functions assigned to the petitioner/respondent (Syed Nasir Abbas Naqvi) as spelt out from the contents of his power of attorney. There is nothing on the file which may tend to show that the petitioner/respondent was decorated/burdened with any function which can legitimately be called as manual or clerical in nature. I am, therefore, of the confirmed opinion that Syed Nasir Abbas Naqvi, petitioner/respondent was not a workman within the meaning of clause
(i) of section 2 of the Standing Order Ordinance, 1948.
17. Similar view was reiterated by a Division Bench of the Sindh High Court in reported case 1985 PLC 403 where it was held that a Manager of booth holding a power of attorney is not a workman. The material observation of the Hon'ble Bench appearing at page 408 is reproduced as under:-- "It is not disputed that the petitioner at the time of termination of his services was working as Manager of the PIA Branch or booth of the respondent-bank and further a power of attorney had been given to him by the bank as far back as 1965. The said power of attorney entitled the petitioner to perform a number of managerial and administrative acts and generally to act on behalf of the respondent-bank. Some of these acts were authorised to be done by the petitioner jointly with another attorney, and others by him individually. Looking to the wide powers conferred upon him by the aforesaid power of attorney it is clear that the petitioner was empowered to do important administrative and managerial functions which are wholly outside the ambit of a workman employed to do manual or clerical functions. In our view, the concurrent finding of the Labour Court and the Labour Appellate Tribunal is based on evidence. We see no reason to interfere with such concurrent finding in this Constitutional petition."
18. A careful perusal of the record shows that the petitioner/respondent (Syed Nasir Abbas Naqvi) was not only a power of attorney holder but at the material time was acting as fiduciary and managerial capacity as such he was not working in any manual or clerical capacity. The definition of terms worker or workman, as contained in the Industrial Relations Ordinance, 1969 indicates that persons, mainly employed in managerial or administrative capacity or persons employed in supervisory capacity and drawing wages exceeding rupees eight hundred per mensum or persons performing functions mainly of managerial nature have been excluded from the said definition. A question was also put to the petitioner/respondent regarding his salary. He stated as "my monthly salary was about 11,000/12,000 Rupees per month including allowances. "Hence he is not a workman to maintain a petition before the Labour Court. In the light of the above celebrated judgment I am convinced that the petitioner/respondent was not a workman to maintain his petition before the Labour Court and his grievance petition was liable to be dismissed on this score alone.
19. Coming to the next moot point regarding the application of Standing Orders Ordinance, 1968 in the instant case, it is significant to note that at the relevant time, the petitioner/respondent was employed at Trunk Bazar. Rawalpindi and the total number of employees at that branch who were 14 out of which only 7 or 8 were workmen. This fact is fully borne out from the copies of the attendance sheets taken from the attendance register of Trunk Bazar, Rawalpindi (Exh.R-2). Even its Satellite Town Branch where the petitioner was transferred after the commission of misconduct the number of workmen were not more than eight. The rest were Officers who were not doing any manual or clerical work and this is borne out from the copy of the attendantce sheet of the said branch (Exh. R-3). The contents of these copies were admitted by the petitioner/respondent in his reply statement. The petitioner also admitted in his cross-examination as follows: "It is correct that premises of every branch is separate and that every branch has got its own manager. It is correct that every official works in his own branch. I do not know State Bank gives sanction of every branch."
It is a settled law that each branch of, a bank is a separate establishment. That is so because each branch has the following attributes:
(i) It has separate premises;
(ii) It has a separate Manager;
(iii) It has separate account holders and account holder of one branch cannot operate the same account at another branch:
(iv) It has separate cheque books;
(v) An employee posted at one branch is only required to work there unless transferred.
(vi) Each branch requires a separate permission from the State Bank of Pakistan under section 28(i) of the Banking Companies Ordinance, 1962 read with rule 11 of the Banking Companies Rules, 1963.
(vii) Each branch is a separate place of business.
20. It has been repeatedly held by the superior Courts that an employer may have more than one establishment and an establishment may have more than one employers. This view was upheld in 1982 PLC 20. It has been held by the High Court in a well-reasoned judgment reported in 1980 PLC 800 that each branch of the bank is a separate establishment. In the aforesaid cases three branches of Grindlays Bank, Lahore were considered as one unit and a single entity for the formation of CBA. Subsequently the employees of one of three branches of the said bank formed a separate union. The registration of such union was challenged before the Lahore High Court, Lahore. The Hon'ble Court adverting to the meaning of word "establishment" held as follows:-- "The word 'establishment' as defined in the Ordinance when interpreted keeping the above principle in view is open to only one conclusion that in the same industry there can be more than one establishment. The phrase ' any office, firm, industrial, unit, undertaking, shop or premises in which workmen are employed for the purposes of carrying on any industry' etc., does not suffer from any ambiguity. One cannot add to the phrase so as to get the meaning that an establishment means establishment of one particular employer. I have gone through the reasoning of the Chairman of the Commission in the judgment cited by the respondents and I feel the same suffers from the germs of its own defect. If the reasoning of the Chairman is adopted, what will happen to a multinational concern with its head office outside Pakistan but branches within. As, on the above interpretation, there cannot be any registered trade union except for the establishment, will not the workers of the branches in Pakistan be denied the benefits of the labour laws. Taking the case of a domestic concern, say for example the Habib Bank Ltd. How can there be uniform benefits as a result of bargaining with the employer regarding leave and other seasonal benefits if the branches are located in cold and hot areas. If the interpretation that establishment means the whole organization which carries on any business or industry and not its branches at various places, is accepted, this would render other provisions of the Ordinance to be redundant.
Redundancy cannot, ordinarily, be read into the statutory provisions. Trade union means any combination of workmen or employers...' There is thus no such restriction that there can be only one trade union for an 'establishment' as interpreted by the Chairman of the Commission. To give effect to this interpretation one shall have to add this provision of the Ordinance. The pharase ' where there are no registered Trade Unions than one is an establishment or a group of establishments, the Registrar shall....' used in subsection (2) of section 22, also contemplates that there can be more than one registered Trade Unions in an establishment...."
21. It has been consistently held in various celebrated judgments of the High Court and Supreme Court of Pakistan that for the purpose of Standing Orders Ordinance, 1968 each branch of a Bank is to be treated as a separate establishment. Reliance is placed on 1990 PLC 462, 1989 PLC 969, 1992 PLC 289 and 1992 SCM R 505 at pages 521-523. In the last case which is titled as Abdul Razzak v.
Ehsan & Sons Ltd.., the Hon'ble Supreme Court of Pakistan held as under:-- "25. It may be observed that from the definitions of the above terms, it is evident that a clerical department of a factory has been included in the definition of the terms 'commercial establishment' and not in the term ' industrial establishment'. Even under the Factories Act, the above distinction has been kept inasmuch as the term factory' has been defined as means any premises including the precincts where ten or more workers are working or were working on any day of the proceeding twelve months and in any part of which, a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power excluding a mine which is subject to operation of the Mines Act, 1923. In the above Act, "worker" has been defined as means a person employed directly or through an agency whether for wages or not, in any manufacturing process or cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work whatsoever, incidental to or connected with the subject of manufacturing process but it excludes any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on.
26. It is, therefore, evident that for the purpose of Standing Orders Ordinance, the clerical department of a factory is distinct from the industrial establishment, However, Mr. Shahani has relied upon the case of the Associated Cement Companies Ltd., Chaibasa Cement Works, Jhinkpani v. Their Workmen AIR 1960 SC 56, in which the Indian Supreme Court has held though the limestone quarry was situated in Agra, and the factory was instituted in Delhi but since there was unity of ownership, unit of management, supervision and control, unity of finance and employment, unity of labour and conditions of service and workmen, functional integrality, general unity of purpose and geographical proximity, it was one establishment in the absence of any test provided for in the Industrial Disputes Act, 1947. He has also referred to an unreported judgment of a learned Single Judge of the Sindh High Court in the case of Pakistan Steel Peoples Workers Union v. The Registrar of Trade Unions, Government of Sindh, Karachi (Constitution Petition No,S-33 of 1990 decided on 19-4-1990), in which the above judgment of the Indian Supreme Court was followed. He has further referred to the judgment in the case of Messrs Jang Publications Ltd. v. Registrar of Trade Unions. Sindh and another (PLD 1984 Kar. 292) in which .a Division Bench of the Sindh High Court to which one of us (Naimuddin, J.). Was a member, while construing sections 22-EE, 22-A (8)
(e) and 22 of the IRO _held that the petitioner had establishments in three different Provinces of the country which are managed and controlled under one Board of Directors, who formulate policy and switch policy decisions from one centre and have three segments of work force, each independently working under the banner of its own trade union, yet has a unity of interest because of its working under one umbrella.
27. On the other hand Mr. Mirza Abdul Rashid has relied upon the case of Muhammad Aqil v. Sindh Labour Appellate Tribunal and another (PLD 1978 Kar. 649), in which a Division Bench of the High Court of Sindh and Balochistan with reference to the term "establishment" defined in the I.R.O. Has inter alia held as follows:-- '7. From the aforesaid definition it would appear that an employer may have more than one establishment, for example, office in a commercial area, shopes in business area of one or more industrial units in an industrial area and the expression 'establishment' would include not whole of the establishment of an employer but each of them individually. That an employer may have more than one establishment for carrying on his industry or for the purpose of his industry is clearly envisaged by provisions contained in the then section 22-A of the Industrial Relations Ordinance, 1969'.
28. The above judgment of the Indian Supreme Court is distinguishable as the relevant statute which was the subject-matter of the case, did not provide any test for determining the question, whether there would be one establishment or two establishments, if an employer had establishment at more than one place of the same factory. Whereas, the Standing Orders Ordinance has clearly demarcated as "industrial establishment" and a "commercial establishment" separately. The above judgment of the Division Bench of the Sindh High Court has also no relevancy as it deals with the question of the election of a bargaining agent and it was held that there could be different unions working in three different cities and that there could be bargaining agent for a particular union or establishment.
29. Having held that under the Standing Orders Ordinance, the clerical office of an industrial establishment will fall within the ambit of the definition of "commercial establishment" and not within the purview of the definition of "industrial establishment", it must follow that respondent No,1, office at Qamar House was a separate establishment from the factory...."
' 1991 PLC 846, 1987 PLC 754, 1995 PLC 692, 1986 PLC 521, 1984 PLC 1679 and PLD 1975 Kar.
36.
' The same matter came up before the Sindh Labour Appellate Tribunal in a case reported in 1997 PLC 219. This also related to Allied Bank of Pakistan Limited. It has been held as under:-- "Mr. Iftikharul Haque has remained absent. Similar case of Allied Bank v. Syed Ali Shah being Appeal No,Kar.83 of 1996 was decided on 7-4-1996 on the basis of the decision of the Supreme Court that the company may have more than one establishments or units and each unit should have 20 or more workers to attract the application of the Standing Orders or the IRO. In this case the Allied Bank has several branches in the country and all such branches cannot be considered to be one unit. Each branch is to be taken separately for the purpose of the application of Standing Orders.
The burden lies on the workers to show that the unit employs 20 or more workers and the IRO and the Standing Orders Ordinance have, therefore, application to his case. Since this has not been proved and objection has been raised that the unit of the bank is governed by the Shops Act the grievance petition under section 25-A IRO was not maintainable before the Labour Court."
22. Since at the Trunk Bazar Establishment Rawalpindi, less than 20 workmen were employed, the provisions of the Standing Orders Ordinance were not applicable to the said branch of Allied Bank of Pakistan Limited. Hence the provisions of Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 were not applicable and the petitioner/respondent's grievance petition merited dismissal on this score also.
23. The learned counsel for the appellant-bank has vehemently contended that since the provisions of Standing Orders Ordinance, 1968 are not applicable to Trunk Bazar Establishment of Allied Bank of Pakistan and since the petitioner/respondent is no longer in employment of Allied Bank of Pakistan Limited, he is not competent to maintain the present grievance petition.
Elaborating his point he has alleged that a dismissed workman whose dismissal has not led to an industrial dispute or has not been in consequence of an industrial dispute is not a workman for the purpose of any proceedings under the Industrial Relations Ordinance, 1969. However, where the Standing Orders Ordinance. 1968 is applicable, a dismissed workman can maintain a grievance petition in respect of his dismissal in view of specific provision contained in. Standing Orders 12. The applicant was employed at an establishment, where Standing Orders Ordinance was in any case not applicable. The applicant being a dismissed person and, therefore, being no longer a workman is not entitled to maintain his grievance petition and this view was judicially recognised in the following cases;
(i) In a case reported at 1980 PLC 514, the Hon'ble Sindh Labour Appellate Tribunal held as follows:-- "Mr. A.T. Mahmood raised two-fold objections to the impugned order. The first ground on which he assails the impugned orders was that the grievance application filed by Azmatullah before the Junior Labour Court on 23rd December, 1975, was not maintainable as admittedly he had retired when he filed the said application. In support of his contention, the learned counsel relied upon the decision of the Karachi High Court in the case of Pakistan Railways v. Junior Labour Court, Hyderabad and others. Constitutional Petition No,106 of 1976 wherein it has been held that a grievance application under section 25-A, I.R.O. Can only be filed by a worker who is actually employed and proceedings taken on a grievance application filed by a retired employee have no legal basis and the orders passed by the Labour Court on such application are without jurisdiction.
I am in respectful agreement with the view taken in the above decision of the High Court."
(ii) In a case reported as 1980 PLC 655, the Hon'ble Sindh Labour Appellate Tribunal laid down the law as follows:-- "The appellant upon his resignation, could not be considered to be a workman for the purpose of Standing Orders except in respect of any grievance under clause (3) of Standing Order 12.
Admittedly the applicant's grievance does not fall within the ambit of clause (3) of the Standing Orders. Similarly he could not be considered to be a workman' or ' worker' for the purpose of the Industrial Relations Ordinance, as at the time of filing of the grievance application under section 25-A of IRO, he was no longer an employee of the respondent Agency, having previously resigned and further neither his services were terminated nor he was dismissed, discharged, retrenched, paid off or otherwise removed from service, nor such termination, discharge, etc. Was in connection with or in consequence of an industrial dispute or has led to such a dispute. Admittedly there was no industrial dispute in respect of nonpayment of the dues of the appellant. As admittedly the appellant is not a workman for the purpose of the Industrial Relations Ordinance, 1969 or even the Standing Orders Ordinance, the grievance application of the applicant was not maintainable and the learned Labour Court rightly rejected the same. I would accordingly dismiss the appeal."
(iii) The Punjab Labour Appellate Tribunal in a case reported 1988 PLC 573 has also held that a retired workman is no longer a workman and therefore, cannot maintain application under section 25-A.
(iv) Mr. Justice Mamoon Kazi of the Sindh High Court in a case reported as 1987 PLC 846 went into the entire history of Legislation on this point and authoritatively laid down as follows: "The legislative intent, in my opinion, is clearly indicated by the various changes which were introduced in the Ordinance and the Standing Orders Ordinance from time to time. When section 25-A was introduced in the Ordinance in place of Standing Order 18, the intention clearly was that only such persons could seek redress under that section, who fell within the ambit of the definition of worker' or ' workman' in the Ordinance. However a plain reading of the definition indicates that the same includes within its ambit only such persons who are employed in an industry for hire or reward, barring of course those who for the purpose of any proceedings under the Ordinance in relation to an industrial dispute have been dismissed, discharged, retrenched, laid off or otherwise removed from employment, in connection with or in consequence of such dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to the dispute. No doubt, subsection
(4) of section 25-A provides that when an application under that section is brought before the Labour Court, the same shall be disposed of as if it were an industrial dispute, but reference to industrial dispute therein only relates to powers and procedure of the Labour Court and the same neither enlarges the definition of "worker" in the Ordinance no does it convert such application into an industrial dispute. However, as pointed out above, a new Standing Order 12 was substituted in the Standing Orders Ordinance in place of the former and Standing Order 12(3) specifically provided a remedy for persons who have been agrieved by their removal, retrenchment, discharge or dismissal from service. Consequently, after such amendment only such persons can seek remedy under Standing Order 12(3), who are workmen according to the definition of the term as given in the Standing Orders Ordinance. The insertion of subsection (6) in section 25-A of the Ordinance indicates that the same was done to provide remedy for persons who had been retrenched, laid off, dismissed or removed from employment. It is further indicative of the awareness on the part of the Legislature that persons falling within the definition of ' workers' in the Ordinance, otherwise could not seek such remedy under section 25-A of the Ordinance. Even the definition of 'worker' in the Ordinance is indicative of the same fact as the same also shows awareness on the part of the Legislature that the definition was not attracted to persons whose services had been terminated by the employer and it appears to be for the same reason that such persons were expressly included in the definition of 'worker' for the purpose of industrial dispute.
However, after deletion of subsection (6) from section 25-A of the Ordinance, the intention clearly appears to be that only such persons can approach the Labour Court in respect of their removal, dismissal etc. From service who fall within the ambit of the definition of ' workman' in the Standing Orders Ordinance. However, by virtue of any law, if the provisions of the Standing Orders Ordinance do not apply to him, the application if any filed by him before the Labour Court would not be competent."
' The case reported at 1992 PLC 58 fully supports the appellant's case on this point.
The position that emerges from the above is that except for a right guaranteed under Standing Order 12 a retired workman cannot maintain an application under section 25-A of the IRO, 1969. This view of the law got its ultimate seal of approval from the Honourable Supreme Court of Pakistan in a very recent case reported as 1998 PLC 172 (at page 177) in the following words:-- "9. The definition of terms worker or workman as contained in the Ordinance indicates that persons falling within the definition of employer persons mainly employed in managerial or administrative capacity or, persons employed in supervisory capacity and drawing wages exceeding rupees eight hundred per mensem or persons performing functions mainly of managerial nature have been excluded from the said definition. It is also pertinent to note that persons who have been dismissed, discharged, retrenched, laid off or otherwise removed from employment have been included in the said definition, but only in case such dismissal, discharge, removal etc., is the connection with or in a consequence of an industrial dispute. However, persons who have been dismissed, discharged or removed from service otherwise than in connection with or in consequence of an industrial dispute are not included in the said definition. Therefore, although a person who has been dismissed, discharged, etc. In connection with or in consequence of an industrial dispute and seek redress of his individual grievance in respect of a right guaranteed to him, as provided in section 25-A of the Ordinance, but such right would not be available to a person who has been dismissed, discharged, or removed from service otherwise than in connection with or as a consequence of an industrial dispute...."
24. The upshot of the above discussion, therefore, is that the position which emerges from the discussion is as under:--
(i) The petitioner/respondent was not a workman.
(ii) He was employed at an establishment where Standing Orders Ordinance was not applicable.
(iii) The right claimed by him does not derive any source/strength from Standing Order 12(3)
(iv) His dismissal has not been in consequence of an industrial dispute nor has it led to an industrial dispute.
' He was, therefore, not competent to maintain the grievance petition and my view stands further fortified by reported cases 1996 PLC 702 and 1998 PLC 1.
25. As regards the last point regarding limitation, the learned counsel for the petitioner/respondent has frankly conceded that the petition was time-barred by a few days and taking a lenient and charitable view I condone this delay which is not fatal for the petition at all.
26. The upshot of the above discussion, therefore, is that the petitioner being not a worker/workman was not competent to seek the induglence of the Labour Court. His grievance petition was liable to be dismissed on this score alone. The non-service of grievance notice was also fatal for his grievance petition. Even otherwise, the Labour Laws i,e, Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 were not applicable in the instant case and the petition was not maintainable for this ground also.
27. Coming to the merits of the case it is significant to note that the petitioner/respondent participated in the domestic enquiry. He was afforded full opportunity to cross-examine the witnesses. He was not condemned unheard. The issuance of second show-cause notice is not a requirement under the principles of natural justice nor mandatory under the Labour Laws.
Reference may be made to PLD 1981 SC 225 and 1999 SCM R 1237. Even otherwise the petitioner/respondent had frankly admitted his guilt which is fully borne out from the documents available on record hence it can safely be held that the technical objections raised on behalf of the petitioner/respondent are rendered irrelevant. The order of dismissal does not bear the imprint of any illegality on its forehead and the learned counsel for the petitioner/respondent has hopelessly failed to elicit anything which may render its validity and legality as doubtful.
27-A. Coming to the principle of double jeopardy with reference to Article 13 of the Constitution; it reads as under: "Article 13. Provides: ' No person-(a) shall be prosecuted or punished for the same offence more than once."
' Although from the very wording used in the Article it is ample clear that principle laid down or safeguard provided does not in any way available to the present petitioner/respondent before this Court. Moreover, it is now well-settled that imposition of any penalty in a departmental enquiry does not amount to a conviction and sentence under criminal law so as to attract application of principle of "double jeopardy". Reference may be made to 1978 PCr. LJ 262, In this regard I cannot help borrowing a very wise observation of the Hon'ble Supreme Court reported in PLD 1987 SC 195 and I quote the relevant portion:-- "The important words in the above provision are 'the same offence'. The word ' offence' while sometimes used in various senses, here implies a crime infrining/public as distinguished from mere private rights and is punishable under the criminal law. Indeed this provision is a protection against double punishment and the punishment contemplated under Article 13 is a punishment that has been imposed upon a person as a result of a criminal prosecution. Hence any penalty imposed on a civil servant as a consequence of departmental proceedings under the Efficiency and Discipline Rules after the accused officer has been acquitted of a criminal charge, is not barred. What this provision bars as observed earlier is a fresh trial- and punishment for the same offence and not the inflication of a penalty as a result of departmental proceedings."
In view of the aforegoing discussion I hold that the grievance petition filed by the petitioner/respondent was not maintainable for the reasons elicited above. His order of dismissal was perfectly justified, and valid. It did not bear the imprint of any illegality on its forehead. The principle of double jeopardy as provided under Article 13 of the Constitution of the Islamic Republic of Pakistan which has been specifically referred to by the learned Labour Court has absolutely no relevancy with the facts and circumstances of the case. He was disqualified by the Institute from appearing in the examination. This may be a penalty so far as the petitioner's competency to appear in the examination is concerned but it brought no stigma to the petitioner/respondent so far as his professional career was concerned. He had committed misconduct by using malpractice in the examination and thus brought a bad name to the bank. He not only cheated the Institute but also betrayed the confidence of its employer. A man who indulges in cheating cannot remain at the pay roll of a bank which deals with hundreds/thousands of people and a large number of citizens and whose entire business rests on confidence.
28. I, therefore, allow this Appeal No, RI-4 of 2001 titled Allied Bank of Pakistan v. Syed Nasir Abbas Naqvi) set aside the impugned judgment and dismiss the petitioner/respondent's grievance petition. The appeal filed by Syed Nasir Abbas Naqvi (No, RI-10/2001) for the grant of back benefits stands dismissed for the reasons recorded above.