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Petitioner: MUSLIM COMMERCIAL BANK LIMITED KARACHI through Attorneys VS Respondent: ABDUL JUDGMENT
Court Name: Labour Appellate Tribunal Judge(s): Iftikhar Ahmad Cheema Title:MUSLIM COMMERCIAL BANK LIMITED KARACHI through Attorneys vs ABDUL
JUDGMENT
Reported As: 2004 PLC 182 Result: Order accordingly. Judgment JUDGMENT ' The above appeals are directed against judgment dated 10-11-1998 passed by Punjab Labour Court No,7, Gujranwala whereby the grievance petition filed by Abdul Majeed Mirza (petitioner) was allowed and he was reinstated in service. However his prayer for back-benefits was turned down. 2. Brief facts of the case leading to the aforesaid appeals are as under:-- ' Abdul Majeed Mirza was employed in Muslim Commercial Bank Limited as Manager in Alipur Chatha Branch at the relevant time. During his service he was found absent for more than ten days without leave. He also allegedly committed fraud on four counts. He was accordingly charge- sheeted which led to a regular enquiry. Mr. Abdul Waheed, Assistant Vice-President was initially appointed as Enquiry Officer but subsequently he was substituted by Mr. Imdad Hussain Butt, A.V.P. At the request of the petitioner. The petitioner joined the enquiry proceedings. The Enquiry Officer found him guilty of the above charges and submitted his detailed report Exh. P-10. On the basis of the same the petitioner was dismissed from service vide order dated 2-3-1983. 3. Feeling aggrieved Abdul Majeed Mirza sought the indulgence of the Labour Court by moving a grievance petition which was contested by the respondents. Both the parties led evidence (oral and documentary) in support of. Their respective claims. The learned Labour Court after a detailed analysis of the entire evidence gave verdict in favor of the petitioner and allowed his grievance petition vide the impugned judgment. However, his request for back-benefits was turned down. 4. The respondents have challenged the propriety and legality of the impugned judgment vide the instant Appeal No,GA-403/98-Punjab) while Abdul Majeed Mirza has assailed the above judgment of the Labour Court by filing a separate Appeal (No, GA-411/98) and I propose to dispose of both
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the appeals by this single judgment because common question of law and facts is involved in both of them and both are directed against the same judgment. 5. While accepting the grievance petition filed by the petitioner, the learned Labour Court has chiefly propounded two main arguments, first, that since the petitioner/respondent (Abdul Majeed Mirza) who was also prosecuted for committing fraud and misappropriation of bank money was acquitted by a Court of competent jurisdiction hence criminal charge against him having stood not proved, the allegation of fraud and misappropriation was absolutely groundless hence he would not have been penalized for the aforesaid offences; and secondly; that the letter of dismissal of the petitioner/respondent was not issued by the competent authority. 6. Controverting the aforesaid grounds, the learned counsel for the appellants vehemently contends that acquittal of the petitioner/respondent from the criminal charge was hardly sufficient to exonerate him from the charge of misconduct particularly when he was found guilty during the domestic enquiry conducted by a Senior Bank Officer and the acquittal cannot overweigh the result of the enquiry which has an independent sanction in law. Even otherwise, the learned trial Court has failed to consider the second charge relating to wilful absence from duty. The petitioner/respondent has frankly conceded in his reply to the charge sheet Exh. P-4 and in his statement when he appeared as P.W.-1 that he was absent from duty at the relevant dates. But unfortunately, the learned trial Court did not touch this point and based his verdict on the simple ground that the petitioner/respondent was acquitted from the criminal Court. 7. Coming to the second ground which has weighed with the Labour Court regarding non-issuance of dismissal order by competent authority, the learned counsel for the appellant contends that the same was issued by the Zonal Chief with the approval of the authority and this is so stated in the letter Exh.P-12 hence no illegality was committed either by the issuing authority or by the competent authority. The learned lower Court has, therefore, erred in holding that the dismissal of the petitioner/respondent was coram non judice. Under Standing Order 15(4) of the Standing Orders Ordinance, 1968, the only requirement is the approval of the employer/authority which has been satisfactorily made in this case, the learned counsel further added. 8. The learned counsel for the appellant (MCB) has further agitated that the grievance petition was patently time-barred. The dismissal order was issued on 2-3-1983. The grievance notice was served on 24-11-1994 hich followed the grievance petition which was filed after about 11 years of the dismissal of the petitioner and there was no justification whatsoever for the condonation of such an inordinate delay. The learned trial Court while condoning the delay has observed that since the criminal prosecution continued for 10/11 years and the petitioner/respondent had to face a protracted litigation hence he could not file his grievance petition with the statutory period. He was quite helpless and handicapped for this reason, Meeting this argument, the learned counsel relying on a D.L. Judgment reported in 1995 PLC 50 has alleged that the continuation of criminal proceedings for a pretty long time cannot be taken to be a valid ground for condonation of delay in filing the grievance petition. Reliance is place on 1994 PLC 507, 2001 SCMR 2018 and 2001 PLC 149. 9. Lastly it has been argued by the learned counsel for the appellant-Bank that the petitioner/respondent was a manager of the branch. He was holding a controlling/executive authority. He was not a worker or workman within the definition of Labour Laws hence he was not competent to seek the indulgence of the Labour Court: Reliance is placed on 1985 SCMR 1511, 1994 PLC 46 and 1999 PLC 38. 10. Having given my careful consideration to the above contentions I have not been able to pursuade myself to agree with the learned counsel for the respondent that he had no intimation of his dismissal from March, 1983 till February. 1995. There is nothing on the file which may tend to show that the petitioner/respondent (Abdul Majeed Mirza) was detained in jail during this period and all his links with outside world were
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broken. He remained behind the bars for a couple of months. It is indeed true that he was acquitted in the criminal case in 1994 but he had been prosecuting his case as a free citizen, hence it is highly inconceivable that he had no intimation of his dismissal from service. Even otherwise his oral assertion in this regard cannot be taken as a gospel truth. If the Courts start believing oral assertions of the dismissed employees that they had no intimation of their dismissal then such dismissed employees after serving 10/12 years in foreign land would file grievance petitions before Labour Courts seeking their reinstatement in service with back-benefits and shall meet the question of delay and limitation by taking the above plea that they had no knowledge or information of their dismissal and -shall be able to make a mockery of justice. Such a delinquent employee who has approached the Labour Court after about 12 years of his dismissal with a lame excuse that he had no intimation of his dismissal did not deserve any leniency whatsoever and his grievance petition should have been outrightly dismissed on this score alone but to my great surprise the learned Labour Court has condoned this inordinate delay of 12 years without assigning any cogent and convincing ground. No conscientious Judge would condone this inordinate delay for which no reasonable .Explanation is forthcoming. The learned counsel for tire respondent (Abdul Majeed Mirza) has vehemently contended that no order of dismissal was .Passed by the competent authority and for this reason no written order was produced before Labour Court during the trial of this case. This argument has no substance. The appellant-Bank produced an order of dismissal of the petitioner/respondent Exh. P-12 which is placed on the file. This order was issued by the Zonal Chief on 2-3-1983 and was sent to the petitioner/respondent at his home address supplied to the employer by the respondent himself. It is, therefore, highly inconceivable that the petitioner/respondent had no intimation of his dismissal from March, 1983 till February, 1995. This is a monstrous lie which cannot be accepted by any sane or sensible person. I am, therefore, convinced that the petitionet/respondent (Abdul Majeed Mirza) was fully alive of his dismissal in March, 1983 but in view of his involvement in two criminal cases he kept mum for 12 years and after acquittal from, the said cases he sought the indulgence of Labour Court by pleading his ignorance about his dismissal from service. His assertion in this regard is absolutely false and fabricated. This conclusion of mine stands further fortified by the admission of the petitioner/respondent which appears in his cross-examination at page 4 and I quote the relevant portions. "I sought confirmation from the management. The reply is Exh. P-9, alongwith the latter, inquiry report was also given, which is Exh.-P-10. I submitted reply Exh. P-11 on 24-2-1983. Soon after I was dismissed from service." ' A bare reading of the above admission clearly shows that information with regard to the dismissal from service was received by the petitioner/respondent soon after submitting reply dated 24-2- 1983, as noted above. Therefore, it cannot lie in the mouth of the petitioner that the order of dismissal was net received by him in time. 11. It has been vehemently contended on_ behalf of the petitioner/respondent (Abdul Majeed Mirza) that since the dismissal order itself was illegal and void ab initio, no limitation can be imposed on it. The contention is self-contradictory. On the one hand the petitioner says that no limitation is prescribed to assail an illegal order. On the other hand he himself has requested by submitting an application for the condonation of delay. If the order of dismissal of the petitioner/respondent as he claims was void and illegal, there was no need to annex an application for the condonation of delay along with the grievance petition and to offer various justifications and lot of reasons in support of condonation of delay. 12. Even otherwise an employee is not the best Judge to judge the validity and propriety of an order passed by the employer. If the employee is convinced that the order of his dismissal is illegal, he should get. It set aside by the conipetent forum but so long as that order, even void remains intact and is not set aside by a Court of competent jurisdiction, that order is binding on all concerned. A
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worker or workman, if aggrieved of an illegal order, should immediately seek indulgence of the proper forum in order to avert consequential harm. However the aggrieved party sought to approach the Labour Court within the statutory period and no time-barred claims/appeal is competent even against a void order. It was, therefore, obligatory for the petitioner/respondent to approach the Labour Court by filing a grievance petition within the statutory period but he sought the indulgence of the Labour Court after about 12 years of his dismissal. This inordinate delay was not condonable. It is also significant to note that in the application for condonation of delay submitted by the petitioner/respondent he has not alleged that the order of dismissal was void and illegal, therefore, no limitation can be imposed upon it. Grievance petition being patently time- barred was liable to be dismissed on this score alone. There was no ostensible reason to condone this delay of about 12 years, hence the finding of the Court below on this pivotal issue is patently erroneous and misconceived. In this regard I cannot help borrowing a very wise observation of the Hon'be Apex Court given in Muhammad Raz Khan v. Government of N.-W.F.P. And another (1997 PLC C.S.) 600 (603) and I quote the relevant portion:-- "There is no cavil to the proposition that normally constraints of limitation do not apply against void orders as held in case of Muhammad Sharif v. Mushtaque Ahmed (1996 SCMR 865). Nevertheless every case is distinguishable on its facts and circumstances. It is undoubtedly imperative for aggrieved party to peruse legal remedies with utmost diligence and satisfy conscience of the Court or quasi-judicial authority for approaching respective forums beyond prescribed limitation, even if objections to the effect were not raised. This principle has been discussed in PLD 1985 SC 153 (Hakim Muhammad Buta and another v. Habib Ahmad and others and PLD 1993 SC 147 (Supreme Court, Province of Punjab and others v. Muhammad Hussain and others). Thus, aggrieved person seeking redress has legal obligation to justify 'each day's delay' for launching proceedings, because with lapse of time valuable right accrues to the opposite side. This view has been consistently maintained by superior Courts. However, reference may be made to judgments reported in (i) PLD 1996 SC 292 (Ali Muhammad and others v. Muhammad Shafi and others), (ii) PLD 1995 SC 396 (Government of Punjab v. Muhammad Saleem), (iii) 1986 SCMR 930 (Muhammad Feroze Khan v. Khalique Dad Khan and 28 others), (iv) PLD 1982 SC (AJ&K) 13 (Khadim Hussain Khan v. The State). ' Now looking to applicability of limitation against void orders question would naturally arise whether right of such person against whom an adverse order exists would be unfettered, ignoring established principles and would enjoy limitless discretion to knock the door of justice whenever desired by him or same should be regulated by judicious norms. We earnestly feel that unless certain constraints apply against right of challenging void order specially relatable to period of knowledge, the same may create complications leading to dangerous results. Principle of justice and fairplay does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber Therefore, according to our considered opinion facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreasonable period at the whims, choice or sweet-will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignored it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus quo will have to be fixed, the date of knowledge of alleged void orders; which too must be independently established on sound basis. In this behalf, we derive strength from the observations contained in PLD 1975 Baghdad ul Jadid 29 (Sayed Sajid Ali v. Sayed Wajid Ali), and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v. Chairman, Screening Committee).
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13. Coming to the next point which calls for the determination of this Tribunal is whether the petitioner/respondent (Abdul Majeed Mirza) was a worker/workman with the definition of Labour Laws. The respondent was employed as Branch Manager at Alipur Chatha. This fact is admitted by the respondent in his cross-examination. It is indeed true that in certain cases Branch Managers serving in different banks were held not to be workers/workmen within the definition of I.R.O. And Standing Orders Ordinance, 1968 and this was so held in 1985 SCMR 1511, 1985 PLC 403, 1994 PLC 46 and 1999 PLC 38. However this is not an inflexsible rule. Each case has to be decided in the light of its own peculiar circumstances. It is now well-settled that it is not the designation but the nature of duties performed by the person, will determine his status as worker/workman and this is so held in PLD 1988 SC 633. The petitioner/respondent who appeared as P.W.-1 deposed on oath that as Officer Grade II he was performing the duties which were essentially of clerical and manual nature. Various duties assigned to the petitioner/ respondent by the appellant-Bank fully detailed in his statement, which were not seriously doubted or disputed during his cross-examination, leave no room for doubt that despite his high sounding status of Grade II Officer he was doing duties which were chiefly of clerical nature. The petitioner/respondents P.W.-1 was subjected to a searching cross-examination, but there is nothing on the file which may tend to discredit his testimony on the question of status. No specific question was made to P.W.-1 that he was not performing the duties of clerical arid manual nature or that whatever he deposed was totally false and incorrect. Now on the basis of evidence available on the file I can safely conclude that the petitioner/respondent was a workman as defined under the provision of West Pakistan Industrial and Commereial Employment Standing Orders Ordinance, 1968. Reliance may be placed on PLD 1975 Karachi 312. This judgment was upheld by the Supreme Court of Pakistan in a case reported as 1975 SCMR 505. The finding of the Court below on this major issue represents the true appraisal of the case and calls for no interference. 14. Coming to the next point which falls for the determination of this Tribunal is whether the departmental appeal allegedly filed by the petitioner/respondent may be considered as a grievance notice. Suffice it to say that it is now well-settled that appeal is not a grievance notice. This matter came up for decision before this Tribunal in a case titled ' ABL v. Nasir Abbas Naqvi' Appeal No,RI-4/2001 dated 20-2-2002. The relevant Para of the judgment is reproduced as under:-- "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 celeberated 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. Reference may be made to judgments reported in 1983 PLC 389, 1983 PLC 616 and 1982 PLC 920". ' I am, therefore, of the view that the finding of the Court below on this issue is also erroneous and incorrect. But assuming without conceding that the departmental appeal may be treated as grievance notice even then the departmental appeal filed after a lapse of statutory period of three months from the date of dimissal from service was patently time-barred, hence the grievance petition was not maintainable for this legal infirmity. 17. Another aspect of the matter which deserves special attention is whether each Branch of MCB in which the petitioner/respondent was employed was a separate establishment. The respondent was employed as Manager at Alipur Chatha Branch of appellant-Bank. He has frankly admitted in his cross-examination as under:-- {{URDU TEXT}}
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' It is a settled law that each Branch of the bank is a separate establishment. Reliance is placed on 1982 PLC 20 and 1980 PLC 800. It is for the employee to prove that 20 or more workmen were employed in the branch where he was serving at the relevant time. It is a mandatory requirement of law for invoking the Standing Orders Ordinance, 1968 and I cannot help borrowing a very wise observation of Mushtaq Ali Qazi, Chairman Labour Appellate Tribunal Sind given in Messrs Allied Bank of Pakistan Ltd. v. Aleem Haider and another (1997 PLC 219) and I quote the relevant portion:-- "Mr. Iftikhar Hague has remained absent. Similar case of Allied Bank v. Syed Ali Shah being Appeal No, Kar-83 of 1996 was decided on 1-4-1996 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 I.R.O., 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 worker to show that the unit employs 20 or more workers and the I.R.O. And the Standing Orders Ordinance have therefore application in 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, I.R.O., was not maintainable before the Labour Court". ' I am therefore, of the view that the provision of West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968 was not applicable in this case, hence the grievance petition was not maintainable. 18. Coming to the next objection raised by the learned counsel for the petitioner/respondent that neither the show-cause notice nor dismissal order was issued by the competent authority, the learned Court, below has observed in the impugned judgment that the charge-sheet, letter of inquiry and the order of dismissal had been ordered by person not competent to do so. I propose to examine this point in detail and reproduce the provisions of subsection 4 of the Standing Order 15 of the West Pakistan Industrial and Commercial Deployment Standing Orders Ordinance, 1968 as under:-- "(3) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiries before dealing with charges against a workman: ' Provided that the workman proceeded against may, if he so desires for his assistance in the inquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the inquiry to assist the workman proceeded against and shall not deduct his wages if the inquiry is held during his duty hours". ' The latest judicial pronouncement on this point is that of the Honourable Supreme Court reported in 1995 SCMR 1758. The worthy apex Court observed as under:-- "Clause (4) indicates that no order of dismissal against a workman shall be made unless the workman is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The said clause further indicates that approval of the employer shall be required in every case of dismissal. It also indicates that the employer shall institute independent inquiry before dealing with any charges against a workman. The defmition of the term "employer" indicates that the person referred to as employer in the said defmition may either be the owner of the establishment itself or in case of a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 as the Manager of the factory. The defmition of the word "employer" is a comprehensive definition and it also extends to establishment other than a factory but since in the present case the establishment concerned was
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a factory, reference to other clauses in the said definition is not necessary. In the present case, there appears to be no controversy in regard to the fact that the Directors of the said establishment had executed a power of attorney in favor of the Manager, Personnel and Administration authorizing him to pass an order of dismissal of officer to conduct an inquiry against him in case of a misconduct. Such authority to the Manager Personnel and Administration was therefore given by the owner of the factory itself which was the Board of Directors in the present case. Learned counsel for the petitioner has nevertheless argued that as would be necessary before any such action is taken against a workman indicates that such approval was not given by the Board of Directors in regard to the action taken against the petitioner. The presumption on the contrary would be that the petitioner had been removed from service with the approval of such Board of…
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