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Petitioner: M/s. United Bank Limited VS Respondent: Federation of Pakistan and Others
Court Name: Sindh High Court Judge(s): Aftab Ahmed Gorar, Adnan-ul-Karim Memon Title: M/s. United Bank Limited vs Federation of Pakistan and Others Case No.: C.P. No. D-4623 of 2018 Date of Judgment:2022-01-24 Reported As: 2022 SHC 42 Result: Petition Dismissed
Judgment ORDER Through this petition, the petitioner-M/s. United Bank Limited has assailed the judgment dated 10.05.2018 passed by the learned Full Bench of National Industrial Relations Commission, Islamabad at Karachi (F-NIRC) whereby , the order dated 28.07.2016, passed by the learned Single Member , NIRC at Sukkur Camp at Hyderabad was maintained to the extent of reinstatemen t of private respondent in service with all back benefits and held that private respondent was erroneously dismissed from service in 2009. For convenience sake, an excerpt of the judgment dated 10.05.2018 passed by the Full Bench of NIRC is reproduced as under: "6. First of all we take up the question whether the instant appeal can be treate d as a Revision Petition or not. Learned counsel for the appellant has heavily relied on the provision of Section 58(2)(d) of IRA, 2012 as a revisional forum of the NIRC but as it has been held by the honorable Supreme Court in Civil Petition No. 2297/14 decided on 02-01-2015. According to which the honorable Supreme Court had held that the provision of Section 58 (2)(d) of IRA, 2012 does not provide revisional forum to the NIRC because appeal / revisional remedy is a statutory remedy and can only be exercised if such a right is expressly and specifically provided under the law and for no reason can be considered as a substitute for the suo motu revisional jurisdiction of the NIRC. So in the availability of this dictum of law laid down by the honorable Supreme Court the instant appeal cannot be treated as a revision. Moreover , this view has been also followed by the Full Bench of NIRC in Review Application bearing No. 12(72)/16- K titled Zulfi titled Zulfiqar Ali Qadri vs. Member NIRC and others. 7. Now the next question is whether this appeal is within time and if time barred whether appellant has convincing and plausible explanation advanced by the appellant. The impugned order was passed on 28-07-2016 and application moved for getting the certified copy of the impugned order on 29-07-2016 and the certified copy was delivered to the appellant on 31-08-2016, while the instant appeal has been filed on 21-10-2016. There is no cavil to this reality that the instant appeal has been filed after badly running limitation of thirty days. For the condonation
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of delay the convincing and plausible explanation of each day is required, in the application for condonation of delay supported by an affidavit at para No. 4 the only explanation is advanced that Nasir Ali deponent of the affidavit was dealing with Labour Management and Employees related litigation was unwell and had to proceed to Lahore as advised by the doctor but alongwith this application / affidavit no supporting / substantive documentary evidence, prescription of the doctor , nature of the deceases or period of ailment has not been provided which speaks that the appellant is not armed with the convincing and plausible explanation for submission of instant appeal with delay so there is no question arise for condonation of delay because it has been held by the honorable Supreme Court in case law 2011 SCMR 8 titled M. Ismal vs. Inspector General Police question of limitation cannot be considered a technicality simpliciter as it has got its own significance and would have substantial bearing on merits of the case. 8. Moreover , in case PLD 2008 SC 462 even one day delay of period of limitation in filing appeal was not condoned by the honorable Supreme Court. Further in case law 2012 SCMR 587 the honora ble Supreme Court rule that no limitation run against void order was not a indefeasible rule because party could not be slept over to challenge a void order and it was to challenge the same within stipulated/ prescribed time period of limitation from the date of its knowledge before the proper forum in appropriate proceedings. The case law relied on by the learned counsel for the appellant 2004 SCMR 98, 2004 SCMR 149, 2007 SCMR 198 are not helpful to the appellant because in the above relied case laws the point of limitation has not been attended. 9. While in the instant appeal there is no question of passing an order in absence of the appellant by the Learned Single Member because the order was announced on 28-07-2016 and application for getting the certified copy of the impugned order was moved on next day i.e. on 29-07-2016, so there is no question of ignorance or lacking of knowledge of the appellant about the impugned order . 10. In the light of above discussion we are of the opinion that the appeal is hopelessly time barred for which the appellant has not advanced any convincing and plausible explanation for which he was legally obliged today so, hence, without touching merits of the appeal, this appeal is hereby dismissed being time barred. There is no order as to costs. File be consigned to the record room after due completion." 2. The case of the petitioner-bank in birds -eye view is that a private respondent was appointed in the year 1990 as Machine Operator / Universal Teller in the petitioner-Bank. Private respondent has averred that the duties assigned to him were cleaning, transferring, postin g SS Card Scanning OBC, IBC daily, however , he did the entire work manually . Private respondent further averred that during his posting at UBL Branch Quaid e-Azam Road, Hyderabad, he was served with a charge sheet, containing allegations of misco nduct of misappropriation of a certain amount, which was promptly replied by him, and denied the allegations leveled against him with vehemence. The petitioner-bank considered his reply and appointed an inquiry officer to probe the allegations. Per petitioner , the charges leveled against the private respondent were proved; and, he was dismissed from service vide letter dated 05.06.2009. The priva te respondent being aggrieved by and dissatisfied with the impugned dismissal form service order served upon the petitioner-bank grievance notice dated 12.6.2009, with the plea that he be reinstated in service with all back benefits, with a further plea that during the intervening period he was not gainfully employed anywhere, however , the matter landed in the learned Sindh Labor Court No.VI Hyderabad (SLC) and finally , the learned SLC vide common order dated 30.01.2013 dismissed the applications of the management of the various companies including petitioner-bank either for dismiss al/abatement of proceedings or return of grievance petitions to the workman. In the meanwhile, learned counsel for the petitioner-bank moved Miscellaneous Application in Grievance Application No.110 of 2009 and submitted that during the pendency of the proceedings before the learned SLC, the Hon'ble Supreme Court of Pakistan has given the decision in the case of Pakistan Telecommunication Private Limited v. Member NIRC, 2014 SCMR 535, and held that matters about "Trans provincial Establishment" are to be determined by the NIRC and not by the Labour Court, therefore, in light of the decision of the Hon'ble Supreme Court of Pakistan, the aforesaid Grievance Application has abated, and could only be now determined by NIRC bench. The learned SLC, vide diary sheet dated 23.08 .2014, referred the matter to the learned NIRC Bench. The learned Single Bench of NIRC after receiving the matter started recording evidence of
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the parties and finally vide order dated 28.7.2016 allowed the Grievance Application of the private respondent and set aside the dismissal from service order dated 05.6.2009 passed by the petitioner-bank and reinstated private respondent in service with all back benefits with immediate effect. Petitioner -bank being aggrieved by and dissatisfied with the impugned decision of the learned Single Bench of the NIRC preferred Appeal/ Revision No.12A (09)/2016 before the Full Bench of NIRC under section 58 read with 58(2) (d) of the Industrial Relations Act, 2012, and the learned Full Bench of NIRC, after hearing the parties, dismissed the appeal, being time-barred and now the petitioner-bank has filed the instant petition on 09.6.2018 against the concurrent findings of two legal fora. 3. Mr. Abdul Haleem Siddiqui, learned counsel for the petitioner-bank, has subm itted that the impugned Orders dated July 28, 2016, and May 10, 2018, of the Respondent No. 2 and 3 are bad in law and on facts as such, the same are not sustainable in the eyes of law; that the impugned orders are based on misreading and non-reading of the evidence available on record and non-consideration of legal objections conc erning the jurisdiction of Sindh Labour Court VI Hyderabad after passing of 18th Constitutional Amendment on April 20, 2010, and cessation of Industrial Relation Act, 2008 (IRA), which resulted in miscarriage of justice; that the Learned Respondent No.2 failed to consider that Presiding Officer Labour Court No.VI at Hyderabad has transferred the case of the Respondent No.4 to Member NIRC at Karachi (Respondent No.3) where the Case of the Respondent No.4 was renumbered as Case No.4B(418)/2014-K and the same was proceeded by the Learned Member of Respondent No.3 who was appointed through notification as Member NIRC for Karachi. Hence, the entire proceeding whatsoever may be conducted by the said Presiding Officer was Corrum non-jud ice; that it is settled Principle of Law that any proceeding before any Court of Law having no Jurisdiction is a nullity in Law and any Order passed by such Court is a void Order , for which no limitation runs against a void Order but the learned Respondent No. 2 failed to consider such aspect of Law and dismissed the appeal being barred by time which is illegal, unlawful and required consideration by this Court; that the learned Respondent No. 2 failed to consider that the Respondent No.4 applied Section 41(4) of the LRA, 2008 before the Sindh Labour Court which states that the Labour Court shall give the Decision within 7 days of the matter being brought before it as if such matter was an Industrial Dispute. Whereas in the present case, Respondent No.4 had committed a breach of trust by indulging in acts of gross negligence due to which an amount of Rs.4,70,000/- was withdrawn from the account of the customer , hence the Charge Sheet was issued about misappropriation of the amount which caused loss to the Bank as mentioned in the said Charge Sheet. Respondent No.4 was provided the full opportunity of being heard and he contested and participated in the disciplinary proceeding neither the Single Bench of NIRC nor Appellate Court has given any finding in this regard; that the Learned Respondent No.3 (Single Bench of NIRC) failed to notice that neither in the Grievance Petition nor in the Affidavit-in-Evidence filed by the Respondent No.4 has alleged his dismissal was in connection with any Industrial Dispute or has led to any Industrial Dispute. Hence, it is settled that the Grievance Petition under Section 41(4) of LRA, 2008 was not maintainable. The said Legal aspect has been ignored either by the Learned Respondent No.3 (Single Bench of NIRC) or by the Learned Respondent No. 2 (Appellate Bench of the NIRC); that the Learned Single and Appellate Bench of NIRC has failed to consider another ground on which the Grievance Petition was not maintainable, under Standing Order 12(3) of the Industrial & Commercial Employment (Standing Order) Ordinance, 1969, as the said law still refers to Section 25-A of LR.O, 1969 which is not in the field and was replaced by IRO, 2002 which was also replaced by IRA, 2008. Furthermore, the IRA 2008 was also repealed or replaced by Industrial Relations (Revival 8. Amendment) Act, 2010 and even the present Industrial Relations Act, 2012. Hence, there is no corresponding amendment made in the law on which the Respondent No.4 refereed to Section 25-A of I.R.O, 1969 in its Impugned Order; that the Learned Single Bench has no jurisdiction to entertain the grievance application of the private respondent and wrongly held that the manager of the Bank was equally responsible for the Commission of offense, this ipso facto is no ground to conclude that extreme punishment and dismissal could not be inflected on Manager but upon the Respondent No. 4 alone. It is submitted that such finding of the Learned Single Bench should not be used for allowing the Petition of Respondent No.4 with back benefit. The quantum of punishment is the total discretion of the employer as held by the Hon'ble Apex Court in its various Judgments. Hence, the Impugned Order of the Single Bench is without
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jurisdiction based on a miscarriage of Justice and liable to be set aside. Learned counsel heavily relied upon the case of Air league of PIAC Employees v. Federation of Pakistan, 2011 SCMR 1254 and argued that the IRA 2008 stood repealed by virtue of section 87(3) with effect from 30.04.2010, and it was not saved, thus the cases pending before SLC and further proceedings were nullity in the eyes of law; that the aforesa id factum was not considered by both the benches of NIRC; that the learned SLC Hyderabad has no jurisdiction to refer the matter to NIRC, as such proceedings before the NIRC on the aforesaid analogy as discussed supra is ultra-vires, illegal, unlawful and are without legal authority and jurisdiction on the premise that there was no any industrial dispute by and between the parties. In support of his contentions, he relied upon the cases of PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others, 2021 SCMR 637, Rehmatullah and others v. Saleh Khan and others, 2007 SCMR 729, Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others, 2007 SCMR 818, S.M. Waseem Ashraf v. Federation of Pakistan through Secretary , M/O Housing and Works, Islamabad and others, 2013 SCMR 338, Mustafa Lakhani v. Pakistan Defence Officers Housing Authority Karachi, 2008 SCMR 611, Talib Hussain and others v. Member , Board of Revenue and others, 2003 SCMR 549, Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others, 2007 SCMR 262, and Mehreen Zaibun Nisa v. Land Commissioner , Multan and others, PLD 1975 Supreme Court 397. 4. Mr. Zia-ul-Haq Makhdoom, learned counsel for the private respondent, has supported the impugned orders passed by the learned Benches of NIRC and argued that the petitioner was dismissed from service on the allegations that two cheques in question were attended by M/s. Mohsan, Nawab Khan, and Miss Anika whereas Mohsan verified the signature of the customer and Nawab Khan made cash payment which was supervised by Anika. The above-named officials had contributed the alleged misappropriation amounts and the same deposited in the account of the complainant, however , they were awarded minor punishment but the private respondent was awarded major punishment of dismissal from service without ascertaining the factual position of the matter that it was no fault of the private respondent. Per learned counsel, the aforesaid version is corroborated by the statement of the witness of petitioner-bank, who had deposed that the above-named officials were charge-sheeted for the same offense and they were given minor punishment while private respondent was awarded major punishment of dismissal from service. Per learned counsel, the aforesaid act of the petitioner bank was/is against the basic principles of natural justice and also violates Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. He further submitted that the private Respondent was a permanent worker in the Petitioner-bank, thus the Grievance Application was maintainable under the law. Learned counsel asserted that the captioned petition is liable to be dismissed under the law on the premise that there are concurrent findings recorded by the competent forum under the special law and the grounds raised in the instant petition are untenable; that Petitioner-bank terminated the services of the private -Respondent without any justiciable reason; that both the aforesaid Judgment/order are passed within the parameters of the law. Besides that the instant petition is frivolous, misleading as there are concurrent finding s by the courts below and this Court has limited jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to dilate upon the evidences led by the parties; that private Respondent had performed his duties with full devotion and was erroneously dismissed from service without fault on his part; that aforesaid action of the Petitioner-bank was absolutely illegal therefore private Respondent served his grievance notice upon the petitioner-bank, which was not redressed at the initial stage, however he had no alternative except to approach the learned SLC for the aforesaid remedy and relief under the relevant provision of law in the field; that the learned SLC after change in law, referred the matter to the learned Bench of NIRC on the plea that petitioner-bank claims to be a trans-provincial establishment, therefore the jurisdiction lied with NIRC and no more with SLC. Learned counsel emphasized that on receiving the pleadings of the parties, the learned Single bench of NIRC recorded the evidence and passed just, proper and fair order , holding the dismissal from service of the private respondent as illegal and reinstated him in service with all back benefits and the Petitioner-bank did not reinstate him on duty and filed a time-barred appe al before the learned Full bench of NIRC by accepting the jurisdiction under the changing scenario of law; that the learned Full Bench of NIRC after hearing the learned counsel for the parties passed the order by dismissing the appeal of the petitioner-bank being
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time-barred, however , the Petitioner-bank has now approached this Court. He lastly prayed for the dismissal of the instant petition. 5. Mr. Nishat Warsi, learned Deputy Attorney General has supported the findings of both the benches of NIRC on the law point and submitted that the learned benches of NIRC have rightly decided the cases in the light of judgment passed by Full Bench of this Court reported as PLD 2014 Sindh 553. Learned DAG assisted this Court and submitted that, when respondent No.4 filed the grievance petition before the Labour Court under the IRO 2008, there was no question of the petitioner-bank being a trans-provincial establishment, since such provision was introduced much later under the IRA 2012. The learned SLC passed the impugned order dated 23.08.2014 under the law laid down by the full bench of this Court as discussed supra and the matter was rightly transferred to NIRC. He further added that, while the Grievance Application was pending before the SLC, the IRA 2012 was already in the field to bestow the NIRC with jurisd iction to decide disputes between employers and workers of a trans- provincial establishment. He further submitted that from the enactment of the IRA 2012 on 14-03-2012, when the matter was landed before the NIRC by operation of law, who passed the impugned judgment/orders under law. Per learned DAG, the petitioner-bank moved an application to the learned SLC for abatement of the proceedings, and the learned SLC rightly referred the matter to the NIRC after the enactment of the IRA 2012 because the petitioner- bank had come to be a trans-provincial establishment as discussed supra. He further added that the petitioner- bank has taken the plea of the jurisdictio n of NIRC at this stage when admittedly two courts have decided all the issues, came out of pleadings, thus the principle of estoppels shall come into play . 6. Primarily the plea taken by the learned DAG on the legal issue is tenable under the law, in this regard, we seek guidance from the decision of the Honorable Supreme Court in the matter reported as PLD 2015 SC 212 that:- "Where a person was aggrieved of a fact, he had a right, rather a duty to object thereto to safeguard his right, and if such a person did not object, he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage--person....Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person." 7. We have heard learned counsel for the parties and perused the material available on record and case-law cited at the bar . 8. To evaluate the legal as well as the factual position of the case, the learned trial Court, framed the issues in the Grievance Applications of the private Respondents and gave its findings in favor of the private Respondent in the petition. 9. To appreciate the controversy from a proper perspective, we deem it appropriate to have a glance at the evidence brought on record by the parties. At the first instance, the relevant portion of the conclusive findings of learned single Bench of NIRC is as under: "3. I have gone through the written argum ents & examined the documents available on record. It is evident from record that two cheques in questions were attended by M/s Mohsan, Nawab Khan and Miss Aniqa, whereas Mohsan verified the signature of the customer and Nawab Khan made cash payment, which was supervised by Aniqa. The above named official had contributed the alleged misappropriation amount and the same deposited in the account of complainant. It is very stran ge that they were awarded minor punishment but petitioner was awarded major punishment of dismissal from service. This version also supported by Mr. Abdul Aziz Assistant Vice president of UBL who was appeared in witness box and recorded his statement as RW-2 has deposed during his cross examination that above named official were charge sheeted for the same offence and they were given minor punishment while petitioner was awarded major punishment of dismissal from service. Which is against the principle of natural justice and also violation of Article 25 of constitution of Pakistan. 4. The Hon'ble High Court of Sindh Karachi reported Judgment in 2006 PLC (CS) 237 has held that "it was legitimate grievance & violation of article 25 of the constitution, when petitioner/employee was not treated a like with other employees and was deprived of some benefits which was being given to others. Rational & underlying idea behind which is that similarly placed and situated should be treated a like and equally . 5. It is pertinent to mention here that according to bank policy as provided in para 9(a)&10 at page-3 about issuance of cheque book which transpires that in two men spoke branch i-e with Manager / Teller only Manager
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shall be one of custodian of cheque book. In all other branches the cheque books shall be kept under dual control. 6. It proves that Manager of the Bank was also responsible of it but no such action was taken against the Manager , Mr. Liqauat Ali inquiry officer was appeared in witness box as RW-1 during his cross examination he deposed that there is no document which certainty show that applicant was on duty and on cash counter on relevant day. He also admitted during his examination that copy of inquiry report was not provided to petitioner . 7. I fortified my view to dictum laid down by Hon'able Supreme Court of Pakistan in case Punjab Road Transport Corporation v/s Punjab Labour Appellate Tribunal Lahore & as reported in 1973 SCMR 455 has held that "It was necessary and consistent with the principles of natural justice, that not only respondent should have been furnished with a copy of the inquiry report but also should have been given opportunity to show cause why the order of dismissal should not be passed against him. 8. For what has been discussed above I am inclined to accept this petition and the same accepted. The impugned order dated: 05-06-2009 dismissal of the petitioner from service is set aside. Petitioner is reinstated in service with all back benefits with immediate effect. No order as to costs. File consigned to record after completion of codal formalities." 10. The aforesaid decision of the learned NIRC was concurred by the learned Full Bench of NIRC. The impugned Judgment/order passed by both the learned Courts below explicitly show that the matter between the parties has been decided on merits based on the evidence produced before them on the subject issues. 11. On merits, we have scanned the evidence available on record and found the admission of the witness of the Petitioner namely Abdul Aziz Assistant Vice president of UBL, who deposed that M/s. Mohsan, Nawab Khan, and Miss Aniqa, whereas Mohsan verified the signature of the customer and Nawab Khan made a cash payment, which was supervised by Aniqa. The above-named officials were charge-sheeted for the same offense…
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