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Petitioner: MCB BANK LIMITED through Attorney VS Respondent: MUHAMMAD IMRAN BHATTI
Court Name: Labour Appellate Tribunal Judge(s): Abdul Ghias Nousherwani Title: MCB BANK LIMITED through Attorney vs MUHAMMAD IMRAN BHATTI Case No.: Labour Appeal No,13 of 2012 Date of Judgment:2012-08-09 Reported As: 2013 PLC 102 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ABDUL GHIAS NOUSHERWANI (MEMBER).--- Through this appeal the appellant assailed the judgment dated 29-3-2012 passed by the learned District and Sessions Judge 1st Labour Court wherein the grievance petition of respondent/applicant was allowed. 2. In the first round of litigation the grievance petition of respondent/applicant was also allowed by the Learned Labour Court by means of order/judgment dated 23-2-2009. On appeal bearing L.A. No,14 of 2009 the case was remanded by this tribunal for rewriting of the judgment through order/judgment dated 8-11.2010 but the then Learned Presiding Officer 1st Labour Court Balochistan has not complied with the remand order and regretted for rewriting of the judgment by means of order/judgment dated 28-2-2011. The respondent/applicant assailed the order dated 28-2-2011 before this Tribunal and under the circumstances of the case the case was again remanded for compliance of order dated 8-11-2010 of this tribunal to the Learned Labour Court whereof after necessary proceedings the grievance application of respondent/applicant was allowed hence this appeal. 3. According to grievance petition of applicant/respondent he was appointed as cashier on 2-1- 1993 and served the bank with his best efforts and honesty and promoted the business of the bank. He further stated that lastly he was transferred to Muslim Commercial Bank Cantt. Branch Quetta as accountant but the nature of work has not been changed. It is further stated that on 15-7-2004 he was charge-sheeted on the ground that irregularities committed by the manager of the branch and the applicant/respondent did not inform the higher authorities of the bank which has been followed by supplementary charge dated 23-4-2004 and second supplementary charge dated 15- 9-2004. The reply of respondent/applicant was not considered satisfactory therefore a letter of
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inquiry was issued on 10-11-2004. Thereafter inquiry was conducted which was resulted to the dismissal of respondent dated 13-6-2005 against which a mercy petition/departmental appeal has been filed on 8-7-2005 which was rejected on 8-12-2005 and thereafter grievance petition was filed on 13-2- 2006. 4. The learned counsel for appellant contended that the respondent was accountant and does not fall within the category of worker/workman therefore the judgment of the Learned Labour Court was without jurisdiction. Secondly contended that the respondent/applicant did not serve the grievance notice under the mandatory provisions and the Learned Labour Court wrongly treated the departmental appeal as a grievance notice which is contrary to his judgment in the case of Javed Iqbal where the same has not been accepted as grievance notice. Lastly contended that the inquiry was conducted according to law and inquiry report was submitted before the court by the Inquiry Officer. The learned counsel for respondent on the other hand contended that in the case of respondent/applicant eight other officials/officers of the bank separately also charge-sheeted but neither the copy of their charge-sheets nor final decisions produced by the appellant. The learned counsel further contended that the manager of the branch who was main accused of the case in hand but no document in respect of his inquiry was produced in the proceedings. Next contended that the vouchers which were the main documents produced during inquiry has not been signed by the respondent. Further contended that before and during inquiry the respondent requested for supply of necessary documents and examination of such records several time but nothing was supply to him which is the violation of mandatory rules of inquiry. Lastly submitted that the respondent having no power to appoint, dismiss or grant leave or refuse grant leave and grant loan to any one therefore defiantly he was a worker/workman according to Labour Laws. 5.Before taking into consideration the points agitated by learned counsel of appellant it is un- understandable that along with memo. Of appeal a huge number of documents has been filed which contains from pages Nos.19 to 592 but a single document of above mentioned has not purpose of section 5 are notified. Then learned counsel referred to Notification dated 20-4-2010 where Noor Muhammad, respondent No,4 is stated to be representing Port Workers Federation of Pakistan. Admittedly, Port Workers Federation of Pakistan is not one of the organizations of the employees listed in the Notification dated 16-12-2009. Learned counsel for respondents referred to Annexure R/6 (with Counter Affidavit) where office-bearers of Pakistan Trade Union Federation (Moor Muhammad Group) are notified by Directorate of Labour, Government of Sindh. Admittedly, name of respondent No,2 does not figure amongst list of such office beareRs, Contention of counsel for respondents was that Pakistan Trade Union Federation is listed at Sr.6 and respondent No,6, according to him, is life and soul of Pakistan Trade Unions Federation (Noor Muhammad Group). That might be so but under section 5 only a person whose name is submitted by the organization of employees (or employers) for that purpose can be made a member of Governing Body. In the Notification dated May 4, 2010 respondent No,4 is stated to be nominee of Port Workers Federation of Pakistan. Now Port Workers Federation of Pakistan may or may not be a Constituent of Pakistan Trade Unions Federation of Pakistan, and respondent No,4 may and may not be office bearer of PTUF but at least Notification dated 4-5-2010 indicates that respondent No,4 was nominated by Port Workers Federation of Pakistan which admittedly is not one of the recognized organizations of workeRs, Therefore, appointment of respondent No,4 cannot be stated to be in accordance with provision of the law. 21. Contention of Ch. Muhammad Ashraf Khan was that respondent No,4 was not holding public office. Learned counsel relied upon Sajid Hussain's case (supra). This was a case of person who had been granted scholarship and it was challenged in a writ of quo warranto and it was observed as under:---
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10. In the principle deducible from the above judgments appear to be a writ of quo warranto can only be issued in respect of a public office:-- (i) Public office means an office which involves delegation of some of the sovereign functions of the Government either executive, legislative or judicial to be exercised by the holder for the public benefit. Unless his powers of this nature he is not a public officer. (ii) Both at the time of institution of the writ petition and on the date of decision it must be shown that the holder suffered from any disqualification to hold the public office. (iii) The Court may test bona fides of the relator to see if he has come with clean hands. Reference may be made to 2009 SCMR 1299. (iv) A writ of quo warranto is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach. (v) Every civil servant or every person in the service of Pakistan does not necessarily hold a public office. If the office is of a petty nature like that of a considerable the Court may refuse to grant the writ (AIR 1952 Nagpur 330): (vi) In order to maintain a writ of quo warranto the petitioner needed not to be an aggrieved person. 11. What has been done through the impugned order is that respondent No,5 has been conferred a scholarship for undertaking studies leading to acquisition of degree of Ph.D. A scholarship for studies is not a public office because no exercise of sovereign powers is involved by the incumbent when he undertakes such studies, therefore, this petition must fail on this ground. If a student is wrongfully admitted in a college it may furnish ground to a student denied admission become in certiorari but cannot be subject to writ of quo warranto because one just studying is not exercising any part of sovereign power." 22. This case is clearly distinguishable. Learned counsel next relied upon Munawar Ali Pathan's case (supra). Facts of the case were that respondent No,3 held office of District Officer (Education). Office of E.D.O. (Education) fell vacant and D.C.O. Allowed respondent to look after charge of E.D.O. And against this, petition was filed. It was held that office was a public office and D.C.O. Was not competent and writ was issued. Learned counsel next relied upon Dr. Kamal Hussain's case (supra) where in respect of writ of quo warranto it was observed that writ of quo warranto cannot issue as a matter of course on sheer technicalities on a doctrinaire approach. Lastly learned counsel relied upon Dr. Bushra Ashiq Siddiqui's case (supra). In this case post involved was of Assistant Professor Microbiology and question was whether respondent possessed prescribed qualification or not. It was contended that since to provide medical education is duty of the State, the respondent by teaching the same was discharging a function of State. Contention was not accepted by a Division Bench of this Court. 23. On the other hand learned counsel for the petitioners relied upon Farhat Ali Khan's case (supra). Farhat Ali Khan was appointed as Judicial Member Income Tax Appellate Tribunal. His employment was challenged on the ground that he did not possess qualification of being advocate for prescribed period. Writ petition was dismissed by the Single Judge on the ground that it suffered by laches. However, Division Bench took the view that holding 'of office is a recurring cause and, therefore, petition in nature of quo warranto could be maintained. Appeal was allowed by the Division Bench and Supreme Court dismissed the appeal. Learned counsel also relied upon Ch. Muneer Ahmed's case (supra). Respondent as returned candidate from a National Assembly constituency and writ petition in the nature of quo warranto was filed, on the ground that respondent No,1 possessed a bogus B.A. Degree which he had procured by fraudulent means. Writ petition was dismissed by holding that respondent No,1 did not suffer for any disqualification. Farhat Ali Khan's second case (supra) was one in which review application was dismissed. So basically question falls down to whether a member of Governing Body of Sindh Employees Security
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Institution holds a public office or not. Respondent No,4 is Member of Governing Body of SESSI. Under section 4 of the Ordinance, 1965 general direction and affairs of Institution vest in the Governing Body. Appointment of Member Governing Body is made under section 5, Institution under section 20 has power to collect contribution at the rate of 6%. And thereafter it provided in Ordinance of 1965 that decision on the complaints, questtion and dispute are to be decided by the Institution. Power of review is also conferred on the Institution under Section 58. Member and servant of institution are treated as public servants and any arrears of contribution can be recovered as land review. In S.M. Wali Ahmed Chowdhury and another v. Mahfuzal Haq Chowdhury, Chairman, District Board, Chittagong and others (PLD 1957 Dacca 209) writ of quo warrant was issued in respect of a Member District Board. Therefore, Member Managing Committee is held to be holder of public office and writ of quo warrant can be issued. 24. As far as respondent No,7 is concerned, he is appointed as Director Administration. In the Abdul Haq Kauser and another v. Alim Akhtar Shah and 2 others, (1989 CLC 1907) writ of quo warrant was issued against General Manager Administration of Karachi Port Trust. Karachi Port Trust is a statutory institution just as Social Employees, Social Security Institution is. Consequently, it is held that respondent No,7 is holding a public office. 24. Respondent No,7 was working as Social Security Officer in BS-16 in the Institution (SESSI) when Sindh Workers Welfare Board appointed him as Administrative Officer BS-17 for a period ending on 30th June, 2009 in Kidney Centre Landhi with immediate effect. It was temporary/contract appointment for a period ending on 30th June, 2009. This appointment was made on 14th July, 2008. It is stated in the petition that when Kidney Centre was transferred from Workers Welfare Board to SESSI respondent No,7 was also transferred and appointed as Deputy Director at Hyderabad in BS-18 and then took over charge as Director Administration, BS-19. In the comments all that is stated is that Para 21 as worded is denied. No document whatsoever has been placed on record to establish as to when respondent No,7 was promoted from BS-16 to BS-17 and then from BS-17 to BS-18 and then from BS-18 to BS-19. Appointment of respondent No,7 by the Sindh Workers Welfare Board was a contract appointment valid till 30-6-2009 and, therefore, after 30th June, 2009 he had to revert back to his post of BS-16. Consequently, it is held that appointment of respondent No,7 as Director Administration BS-19 is without lawful authority and is of no legal effect. 26. Contention of Dr. Muhammad Farogh Naseem was that the Managing Committee was illegally constituted as there was, according to him, and according to the above discussion, one person illegally appointed on the Managing Committee. Complete answer to such contention of the learned counsel exists in section 78 of the Ordinance of 1965 which Section is as under:--- "73. Bar on benefits under other laws.--- When a person is entitled to any of the benefits provided by this Ordinance, he shall not be entitled to any similar benefit under any other law." Therefore, even if one of the Members of Managing Committee is wrongly appointed it does not nullify decisions made by the Managing Committee. Moreover, such actions are protected by now well established de-facto doctrine. 28. In view of the above discussion we do not think that it would be necessary for us to go into the question as to how may vacancies were approved and how many vacancies were advertised and how many persons were recruited. This leaves us with contention of learned counsel regarding quota for children of employees of the Institution. In this regard Articles 25(1) and 27 of the Constitution may be referred to; 25. Equality of citizens.-- (1) All citizens are equal before law and are entitled to equal protection of law. 27. Safeguard against discrimination in service.--- (1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth:
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Provided that, for a period not exceeding forty years from the commencing day, Posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan: Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex: (Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament).) (2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority." 29. Article 25 mandates that all citizens are equal before law and are entitled to equal protection of law. In view of this, son of employee of Institution is equal to son of one who is not such employee. Under Article 27 while posts could be reserved for any class or area but the purpose of reservation is to secure their adequate representation and not to confer benefit on existing employees. Reservation of seats militates against equality and constitutes discrimination against other citizens of Pakistan who may be equally, or better, qualified but door is barred in their faces because they are not sons of previous or present employees. Any reservation of quota by Governing Body in violation of provision laid down in the Constitution cannot be allowed to stand. 30. Result of the above discussion is that appointment of respondent No,4 as Member Governing Body is declared to be as without authority of law. Appointment of respondent No,7 as Director Administration is also declared to be without any lawful authority and respondent No,7 is directed to be posted in accordance with his grade which is BS-16. This Constitutional petition is disposed of in the above terms. Listed application is also disposed of. Order accordingly. 2013 PLC 102 [Balochistan Labour Appellate Tribunal] Before Abdul Ghias Nousherwani, Member MCB BANK LIMITED through Attorney versus MUHAMMAD IMRAN BHATTI Labour Appeal No,13 of 2012, decided on 9th August, 2012. Balochistan Industrial Relations Act (XIII of 2010)- ----Ss. 2(dd), 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.0.15---Dismissal from service---Grievance petition---Status of workman, determination of---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on the charge that he did not inform the higher authorities about the irregularities committed by the branch Manager of the bank---Grievance petition filed by the employee against order of his dismissal was accepted by the Labour Court---Employer contended that employee was an accountant and did not fall within the category of workman/worker, therefore, his grievance petition was not maintainable; that the employee did not serve the grievance notice under the mandatory provisions; and that the Labour Court was not justified to treat the departmental appeal as a grievance notice--Validity---Although employee was working as an accountant on his last posting, but initially he was appointed as cashier with a pay of Rs,995 per month, which pay did not seem to be that of an officer---Secondly no power of attorney was executed in favour of the employee for showing that he was empowered to exercise discretion and could take important decisions---Employee was not heading an establishment of the bank independently---Labour Court, in circumstances, had rightly declared the employee as worker--- Total theme behind the grievance notice was that the employee before approaching the court
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should bring his grievance in the notice of his employer by himself, or shop steward or Collective Bargaining Agent---Though in the present case, in the departmental appeal, the President was addressed, but through General Manager being the appointing authority---Such appeal came in process through the General Manager who automatically received the information, grievance notice of the employee---Aim and theme behind the grievance notice became completed when the departmental appeal was received by the appointing authority of the employee i,e, General Manager---Departmental appeal could be treated as grievance notice--- ' Charge and inquiry in the case was conducted by the employer of their own and mandatory provisions of law of inquiry had been violated by not providing the relevant documents to the employee---Regarding allegation against the employee that he had not informed the higher authorities about the illegal activities committed by the manager, no rules or law or any direction was produced by the employer to show that employee being an accountant had any power to convey the illegal activities of the manager (who was his immediate boss) to the higher authorities---Fact that a subordinate would have such power/authority to report the illegal activities of his immediate boss to the higher authorities was against common sense---Allegation in the charge-sheet had been committed before the transfer of the employee in concerned branch, and employer bank had not suffered any financial loss--- Judgment/order passed by the Labour Court, was upheld and appeal was dismissed, in circumstances. [pp. 104, 105, 107, 108, 109] A, B, C, D, E, F & G 1985 SCM R 1516; SBLR 2007 Sindh 800 and NLR 2007 (Labour) 141 distinguished. 2010 TD (Lahore) 2017 and 2002 SCM R 943 ref. Sabir Sardar for Petitioner. Abdul Rasheed Khokhar for Respondent. Date of hearing: 26th July, 2012. JUDGMENT ' ABDUL GHIAS NOUSHERWANI (MEMBER).--- Through this appeal the appellant assailed the judgment dated 29-3-2012 passed by the learned District and Sessions Judge 1st Labour Court wherein the grievance petition of respondent/applicant was allowed. 2. In the first round of litigation the grievance petition of respondent/applicant was also allowed by the Learned Labour Court by means of order/judgment dated 23-2-2009. On appeal bearing L.A. No,14 of 2009 the case was remanded by this tribunal for rewriting of the judgment through order/judgment dated 8-11.2010 but the then Learned Presiding Officer 1st Labour Court Balochistan has not complied with the remand order and regretted for rewriting of the judgment by means of order/judgment dated 28-2-2011. The respondent/applicant assailed the order dated 28-2-2011 before this Tribunal and under the circumstances of the case the case was again remanded for compliance of order dated 8-11-2010 of this tribunal to the Learned Labour Court whereof after necessary proceedings the grievance application of respondent/applicant was allowed hence this appeal. 3. According to grievance petition of applicant/respondent he was appointed as cashier on 2-1- 1993 and served the bank with his best efforts and honesty and promoted the business of the bank. He further stated that lastly he was transferred to Muslim Commercial Bank Cantt. Branch Quetta as accountant but the nature of work has not been changed. It is further stated that on 15-7-2004 he was charge-sheeted on the ground that irregularities committed by the manager of the branch and the applicant/respondent did not inform the higher authorities of the bank which has been followed by supplementary charge dated 23-4-2004 and second supplementary charge dated 15- 9-2004. The reply of respondent/applicant was not considered satisfactory therefore a letter of inquiry was issued on 10-11-2004. Thereafter inquiry was conducted which was resulted to the dismissal of respondent dated 13-6-2005 against which a mercy petition/departmental appeal
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has been filed on 8-7-2005 which was rejected on 8-12-2005 and thereafter grievance petition was filed on 13-2- 2006. 4. The learned counsel for appellant contended that the respondent was accountant and does not fall within the category of worker/workman therefore the judgment of the Learned Labour Court was without jurisdiction. Secondly contended that the respondent/applicant did not serve the grievance notice under the mandatory provisions and the Learned Labour Court wrongly treated the departmental appeal as a grievance notice which is contrary to his judgment in the case of Javed Iqbal where the same has not been accepted as grievance notice. Lastly contended that the inquiry was conducted according to law and inquiry report was submitted before the court by the Inquiry Officer. The learned counsel for respondent on the other hand contended that in the case of respondent/applicant eight other officials/officers of the bank separately also charge-sheeted but neither the copy of their charge-sheets nor final decisions produced by the appellant. The learned counsel further contended that the manager of the branch who was main accused of the case in hand but no document in respect of his inquiry was produced in the proceedings. Next contended that the vouchers which were the main documents produced during inquiry has not been signed by the respondent. Further contended that before and during inquiry the respondent requested for supply of necessary documents and examination of such records several time but nothing was supply to him which is the violation of mandatory rules of inquiry. Lastly submitted that the respondent having no power to appoint, dismiss or grant leave or refuse grant leave and grant loan to any one therefore defiantly he was a worker/workman according to Labour Laws. 4. Before taking into consideration the points agitated by learned counsel of appellant it is un- understandable that along with memo. Of appeal a huge number of documents has been filed which contains from pages Nos.19 to 592 but a single document of above mentioned has not been relied upon or referred by the learned,…
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