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Petitioner: NAZIR AHMED and another VS Respondent: MUSLIM COMMERCIAL BANK LTD and others
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany, S. A. Sarwana Title: NAZIR AHMED and another vs MUSLIM COMMERCIAL BANK LTD and others Case No.: Constitutional Petitions Nos. D-1006 and D-1007 of 1999 Date of Judgment:2003-07-29 Reported As: 2004 PLC 1 Result: Petitions allowed
JUDGMENT
JUDGMENT ' S. AHMED SARWANA, J.---In Constitutional Petition No, D-1006 of 1999, Nazir Ahmed, who was an employee of Muslim Commercial Bank (hereinafter referred to as "MCB") working as a Cashier at Ghotki Branch was served with a charge-sheet allegedly for misappropriation of cash relating to two telephone bills amounting to. Rs,13,049. Nazir refuted the allegations made in the charge-sheet and explained his position in detail, which was not accepted and the matter was referred to an Enquiry Officer. After holding an enquiry, Nazir was allegedly dismissed from service for misconduct on 3-12-1997, On 10-2-1998, he sent a grievance notice to MCB and on 11-3-1995 filed an Application No,3/98 under Section 25-A Industrial Relations Ordinance. 1969 (hereinafter referred to as "IRO") before the Sindh Labour Court No, VII, Sukkur. MCB filed preliminary legal objections, challenging the maintainability of the application, inter alia, on the ground that it was barred by limitation and that West Pakistan Commercial and Industrial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as "Standing Orders") were not applicable in the case of the petitioner as the Branch where Nazir was employed consisted of seven employees only. MCB also filed an application requesting the Court to decide the legal question before proceeding with the application. The said application was rejected by the learned Labour Court by order dated 6-6- 1998. Being aggrieved by the aforesaid order, MCB filed Revision Application No,SUK-194 of 1998 before the Sindh Labour Appellate Tribunal, Karachi (hereinafter referred to as "SLAT"). After hearing the learned counsel for both parties, the learned SLAT disposed of the revision by order dated 3-2- 1999, inter alia, holding that the legal question pertaining to the jurisdiction as argued by the learned counsel ' for "MCB that each branch of the Bank is to be treated as a separate establishment in view of the law laid down by Honourable Supreme Court of Pakistan in 1992 SCMR
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505 and the Division Bench Judgment of the High Court of Sindh in 1974 PLC 194, remanded the matter to the Labour Court with the following direction: "Let the Court decide this issue first, after recording evidence on the point, if it is proved that the number of employees has been less than the number required during past twelve months, the matter will end then and there" (Sic). 2. The Labour Court recorded the evidence of Nazir. During his cross-examination the petitioner admitted that the number of employees in the branch of MCB where he was working at the time of dismissal was less than 12;13 persons, consequently, the Labour Court dismissed the petitioner's application under section 25-A, I.R.O. With the following observations: "....When it is proved that number of employees were less than the required number under the law, the provisions of, Standing Order Ordinance, 1968 are not applicable to this case and further proceedings will be fruitless. The application under section 25-A of I.R.O. 1969 is dismissed as not maintainable under the light the above mentioned observations of Chairman, Sindh Labour.Appellate Tribunal, Karachi." 3. Being aggrieved by the order of the Labour Court dated 22-6-1999, Nazir filed the present petition seeking, inter alia, following relief: (a) That the Honourable Court may be pleased to declare the judgment of Sindh Labour Appellate Tribunal dated 3-2-1999 and the consequent order of Labour Court dated 22-6-1999 as illegal and of no legal effect. (b) That the Honourable Court may be pleased to set aside the aforementioned judgment of SLAT dated 2-3-1999 and order of Labour Court dated 22-6-1999 and remand the case to Labour Court for decision on merits. 4. In Constitutional Petition No,D-1007 of 1999, Abdul Razaak, Petitioner, (hereinafter referred to as "Razaak) an employee of MCB, who was at the relevant time posted as a Cashier at Clock Tower Branch, Sukkur was charge-sheeted for misconduct on 1-4-1997 and after holding an enquiry was dismissed from service by the General Manager, GM Office MCB, March Bazar Sukkur (Respondent No,2) by order dated 31-7-1997. Razaak after serving the Grievance Notice filed Grievance Application No,13/1997 before Sindh Labour Court No,7, Sukkur, which was dismissed for want of jurisdiction by order dated 25-9-1997 on the ground that under the amended law the petitioner was a civil servant for the purpose of Service Tribunals Act. Razaak filed Appeal No,222 of 1997 before the Sindh Labour Appellate Tribunal at Karachi which after hearing the parties set aside the order of the Labor: Court by decision dated 3-4-1998 and remanded the case of the Labour Court for decision on merits. 5. MCB filed its Reply Statement alongwith the Preliminary Objection on the maintainability of the Grievance Application on the ground that the number of workmen employed in the concerned branch at the relevant time was less than 20 and as such the Standing Orders were not applicable in the matter. The learned- Labour Court dismissed the Grievance Application by order dated 22- 6-1999 stating that the learned SLAT while deciding Revision Application No,SUK-194 of 1998, MCB v. Nazir Ahmed had observed that if at the time of dismissal of a workman from service, the number of staff employed is less than 20, the application under section 25-A, I.R.O. Would not be maintainable. 6. Being aggrieved by the order dated 22-6-1999 passed by the Sindh Labour Court No,7 Sukkur, on the basis of Nazir Ahmed's case (referred to above and which is also being decided by this judgment) filed this petition seeking a declaration that the judgment of SLAT dated 3-4-1998 passed in Appeal No, SUK-194 of 1998, MCB v. Nazir Ahmed and the consequent order dated 22-6- 1999 passed by the Sindh Labour Court in his case with reference to the aforesaid judgment is illegal and of no legal effect and an order to set aside the impugned judgment and remand the case to the Labour Court for decision on merits.
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7. As the law point involved in both the petitions is the same, by agreement of the learned counsel, they are being decided by one consolidated order. 8. In both the above petitions, MCB filed an application under Order VII rule 11 C.P.C. For dismissal of the petition on several grounds but at the time of the hearing Mr. Mahmood Ghani, learned counsel for MCB, urged only the following three points: (i) That the Constitution petition was not maintainable as the petitioner had filed the petition without exhausting the relief of Appeal provided under section 37(3) I.R.O., 1969 or a revision under Section 38(3A) I.R.O. And referred to the following cases in support of his contention. Rauf Yousuf v. Bahadur Ali, 2000 PLC 79, Norwich Union v. Muhammad Javed Iqbal, 1986 SCMR 1071 and Sami Pharmaceutical v. SLAT 1985 PLC 754. (ii) That the petition is liable to be dismissed as the findings of the learned Labour Court No,7 as to the number of workmen employed in the Branch is a finding of fact which cannot be disturbed in a Constitution petition and the Petitioners are estopped from challenging the same as they had not impugned the order of SLAT and cited Government of Punjab v. Prof. Mrs. Jamila Malik, PLD 1999 SC 2496, Malik Mohammad Din v. Babu Fazal Karim, PLD 1968 Lahore 544 and Khiali Khan v. Nazir PLD 1997 SC 304. (iii) That unuer the Standing Orders every branch of a hank is a separate and independent establishment and if the workmen employed therein are less than 20, the Standing Orders would not be applicable to the employees working in the said branch and referred to 1992 PLC 424, 1992 SCMR 505, 1974 PLC 194, 1993 PLC 386. 1996 PLC 174, 1987 PLC 390 and 1993 PLC 2. He also produced a copy of an un-reported judgment dated 9-1-1999 of the Honourable Supreme Court in Civil Appeal No,206 of 1988. National Bank of Pakistan v. Punjab Labour Court and Safdar Ali Khan. 9. Mr. Nizamuddin Baloch, learned counsel for the Petitioner, in reply submitted as follows: (i) That the learned Sindh Labour Appellate Tribunal had given its final opinion on the question of the number of employees in the branch on the basis of which the Labour Court dismissed the grievance petition and as the plaint involved was clearly a question of legal interpretation, an appeal to the Sindh Labour Appellate Tribunal on the same legal question would have been futile and accordingly the petition was maintainable. (ii) With reference to the objections of finding of fact relating to the number of employees, he explained that he was not asking for a review of the finding and would argue the Petitions assuming the number of employees as stated to be correct. (iii) The definition of "commercial establishment" given in the Standing Orders includes a bank or a banking company and if the bank or the banking company has several branches in the same city or the country the whole organization is one entity and all the employees of the banking company irrespective of their place of work have to be counted together to determine the applicability of the Standing Orders. He referred to 1977 PLC 20 and 1990 PLC 643 in support of his argument. 10. We have heard the arguments of Mr. Nizamuddin Baloch, learned counsel for the petitioners and Mr. Mahmood. Abdul Ghani, learned counsel for the respondents and have considered the same in light of the provisions of the Standing Orders, 1968 and the reported judgments of the various Courts on the questions in issue. 11. It is an admitted position that the learned SLAT in its judgment dated 3-2-1999 in the case of MCB sv. Nazir Ahmed, relying upon 1992 SCMR 505 and 1974 PLC 194 had remanded the case to the Labour Court with, the., direction to record' evidence of the parties and if it is proved that The number of employees was less than the number required during the, last-twelve months, the matter will end then and there. This was apparently an opinion on the maintainability of the Grievance Petition filed by Nazir Ahmed before the Sindh Labour Court No,7, Sukkur. The Labour Court after recording the evidence in the case came to the conclusion that only twelve persons were working at the relevant branch and consequently dismissed the application under section
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25-A, I.R.O. On the ground that the provisions of Standing Orders Ordinance, 1968 were not applicable to the case and further proceedings would be fruitless. Nazir could have filed an appeal before the SLAT against the order of .The. Labour Court under section 37 IRO but the exercise would have been futile because the learned SLAT had already given a definite opinion on the definition of "Commercial Establishment" given in the Standing. Orders. As the question involved was only the interpretation of the. Standing, Orders Ordinance, 1968 and the maintainability of the application and the jurisdiction of the Labour Court under Section 25-A I.R.O in our.Opinion it is a fit and, proper case to be entertained and decided under-Article 199 of the Constitution without filing an Appeal to SLAT as, discussed above. 12. The arguments of Mr. Abdul Ghani, learned counsel for MCB, that the Labour Court had given a definite nding of fact with regard to the number of workmen employed in the branch and the High Court is barred from. Interfering, with, such finding, as a general principle of law, is correct but, the, answer to, the objection has been properly met and countered by, the. Submission of Mr. Baloch, learned counsel for the petitioners, that the. Petitioners were not asking the Court to look into the finding of fact relating to the number of persons employed in the branch but were requesting the Court to give an interpretation of the term "Commercial Establishment" assuming me finding to be correct. We are in agreement with Mr, Baloch that the question involved in the present petition does, not involve any disturbance in the finding of fact in relation to the number of workmen employed in the branch at the relevant time but relates to the interpretation of law of general public importance. The objection of Mr. Ghani is misconceived and is accordingly rejected. 13. Section 1(4) of the Standing Orders stipulates that its provisions apply to every industrial or commercial establishment wherein twenty or more workmen are employed ... ... Or were so employed on any day during the preceding twelve months. The term "establishment" has not been defined in the Standing Orders, however, the terms "Commercial Establishment" and "Industrial Establishments",. Are defined as follows: "2(b)--"commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock-exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Government may by notification in the official Gazette, declare to be a commercial establishment for the purposes of this Ordinance; (underlining added) 2(f):- "industrial establishment" means:-- (i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or (ii) a factory as defined in clause (j) of section 2 of the Factories Act, 1934 (XXV of 1934); or (iii) a railway as defined in clause (4) of section 3 of the Railway Act, 1890 (IX of 1890); or (iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on; or (v) the establishment or a person who, directly or indirectly, employs workmen in connection with any construction industry; Explanation.--"Contractor" includes a sub-contractor, headman or agent. 14. According to the definition given in the Standing Orders, "Commercial Establishment" refers to a place in which the business of advertising, commission or forwarding is conducted and includes a clerical department of factory or of an industrial or commercial undertaking an insurance
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company, a banking company or a bank..., and such other establishments or class thereof as the Government may by notification declare to be a commercial establishment for the purpose of the Standing Orders. It is pertinent to note that the definition specifically includes "a banking company or a bank". The question in issue in these petitions is not whether Nazir and Razaak are workmen but whether a bank or a company includes all the branches of the bank or every branch of a bank is to be treated under the Standing Orders as a separate and independent commercial establishment, if 20 or more workmen are employed or were so employed on any day during the preceding twelve months and if the number of workmen at any branch is less than 20 as described above, the benefit of the provisions of Standing Orders would not be available to the workmen employed therein. It may be mentioned here that neither party has contended that MCB comes within the definition of an industrial establishment. 15. It is well-established that all labour laws are beneficial or remedial statutes enacted for ameliorating the lot of the working class and as such should be interpreted liberally. (Kohinoor Chemical Company Ltd. v. Sindh Employees Social Security Institution, PLD 1997 SC 197). The Standing Orders Ordinance, 1968 is admittedly a welfare legislation and therefore, its provisions must be interpreted liberally in favor of the workmen to provide to them the maximum privileges and benefits stated therein. 16. The terms "banking company" or "a bank" used in the definition of "commercial establishment" has not been defined in the Standing Orders. According to the established principles of interpretation these two terms are to be construed in the sense in which everyone conversant with that trade or business knows and understands and if there is already a statute relating to the subject-matter i,e, the banking business then it must be construed according to the law relating to banking business in Pakistan. (See Craies on "Statute Law", 7th Edn., 1971, p.164; Crawford's "Statutory Construction", Pakistan Law House, Reprint 1998, Section 187, p.319 and Maxwell on "The Interpretation of Statutes", Twelfth Edition, 1969, p.85). It would, therefore, be advantageous to refer to .The various provisions of the Banking Companies Ordinance, 1962 (hereinafter referred to as "the Banking Ordinance") which was promulgated to consolidate and amend the law relating to banking companies as it would assist in finding out the meaning of the terms "bank or banking company" as used in Pakistan and consequently a just solution to the problem at hand. A few of the relevant provisions are: ' Section 5. Definition---(a) (b) "banking" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise: (c) "Banking company" means any company which transacts the business of banking in Pakistan; (d) "branch" or "branch office", in relation to a banking company, means any branch or branch office, whether called a pay office or sub-pay office or by any other name, at which deposits are received, cheques cashed or moneys lent, and for the purposes of section 40 includes any place of business where any other form of business referred to in sub-section (1) of section 7 is transacted. (Emphasis added) ' Section 7 of the Banking Ordinance relating to the forms of business in which banking companies may engage gives in extensive detail the kinds of business in which Banking Companies may engage which includes, among others, borrowing, raising or taking up of money, providing of finance, carrying on guarantee and indemnity business, dealing in property, opening of letters of credits and doing all such other things as are incidental or conducive to the promotion or advancement of the business of the company and any other form of business which the Federal Government by notification may specify.
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8. Use of the word 'Bank' or any of its derivatives.---Every company carrying on the business of banking in Pakistan shall use the word "Bank", or any of its derivatives as part of its name and no company other than a banking company shall use in its name any word calculated to indicate that it is a banking company. ' Section 28. Restriction on opening of new, and transfer of existing, places of business.---(1) No banking company shall open a new place of business in any part of Pakistan or change, otherwise than within the same city, town or village the location of an existing place of business situated in any part of Pakistan and no banking company incorporated in Pakistan shall open a new place of business outside Pakistan or change, otherwise than within the same city, town or village in any country or area outside Pakistan, the location of an existing place of business situated in that country or area without first obtaining the prior permission in writing of the State Bank. (2) 'Section 34. Accounts and balance-sheet.---(1) At the expiration of each calendar year every banking company incorporated in Pakistan, in respect of all business transacted by it, and every banking company incorporated outside Pakistan, in respect of all business transacted through its branches in Pakistan, shall prepare with reference to that a year a balance sheet and profit and loss account as on the last working day of the year in the forms set out in the Second Schedule or as near thereto as circumstances admit. (2). ' Section 36. Submission of returns.---The accounts and balance-sheet referred to in section 34 together with the auditor's report as passed in the Annual General Meeting shall be published in the presecribed manner, and three copies thereof shall be furnished as returns to the State Bank within the months of the close of the period to which they relate: ' Section 40. Inspection.---(1) Notwithstanding anything to the contrary contained in section 138 of the Companies Act, 1913, the State Bank may, at any time, and, on being directed so to do by the Federal Government, shall, inspect any banking company and its books and accounts. (2) ' Explanation.---For the purpose of this section, expression "banking company" shall include-- (ii) in case of a banking company incorporated in Pakistan (a) .. (b) all its branches whether situated in Pakistan or outside Pakistan. (Emphasis added). 17. Now, rule 2 of the Banking Company Rules, 1963, relating to interpretation states that: (a)... (c) "principal office of the banking company" means the office of the banking company which shall be responsible for the submission of returns under the Ordinance or these rules; (d) .. (e) "place of business" of a banking company includes any sub-office, pay office, sub-pay-office or any place of business at which deposed are received, cheques cashed or moneys lent. (Emphasis added). 18. In view of the provisions stated above, it is clear that MCB is carrying on the business of banking as defined in the Banking Ordinance (Section 5(b) and (c)1 and is using the word "bank" as a part of its name (Section 8, Banking Ordinance). Further, MCB has branch offices all over the country which it has opened with the permission of the State Bank of Pakistan (SBP) where it is receiving deposits. Encashing cheques, lending monies and carrying on other banking business (Section 5(d) read with section 28 of the Banking Ordinance). It cannot be denied that at the end of each calendar year MCB prepares the accounts and balance sheet in respect of all business transacted by it which includes the banking business of all its branches and with the Auditor's Report as
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passed in the Annual General Meeting publishes it in the prescribed manner and furnishes three copies thereof as returns to the SBP within three months of the close of the period to which they relate (Sections 34 and 36, Banking Ordinance). The learned counsel for MCB has neither argued nor can he deny that the SBP does and has carried out inspection of its branches throughout Pakistan irrespective of the number of the workmen employed therein. The principal office of MCB submits the returns under the Banking Ordinance which includes the branches irrespective of the number of workmen employed therein where banking business including receipts of deposits, encashment of cheques and lending of monies is done (rule 2 of the Banking Companies Rules). 19. It cannot be disputed that a banking company in Pakistan works as an organization with branches all over the country and its workmen no matter at which branch they are stationed or posted work for the common object of providing banking services to the customers and thereby earn profit for the shareholders of the bank. It cannot also be disputed that the terms and conditions of service of the employees of MCB do not change if they are transferred from the Principal Office in Karachi where 1,000 or more employees may- e working to a branch in a town where only 4 or 5 employees may be working. The employees of the bank continue to get the same salary and wages and are subject to the same terms and conditions of the service including those relating to discipline whether they work at the principal office, regional office or a branch where 50 or more workmen are employed or a branch where less than 20 persons are employed or have been employed on any day during the preceding twelve months. Mr. Abdul Ghani, learned counsel for MCB, did not cite any law or judgment to show any settlement entered with any Collective Bargaining Agent which indicates a reduction of wages or in the benefits of a workman, if he is transferred from a branch of MCB where 100 persons are employed to a branch where less than 20 persons are employed. The Principal Office, Regional Office and all its branches irrespective of the number of employees working therein are patently parts of one organization of MCB which is one bank or a banking company. It would be pertinent to state here that a "branch" is defined as a local division or…
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