DOST ALI Versus NATIONAL BANK OF PAKISTAN

DECISION

This is an appeal filed by the appellant against an impugned order, dated 11‑3‑1987, passed by the Sind Labour Court No. VI Hyderabad, who had dismissed the grievance petition of the appellant under section 25‑A, I.R.0.1969.

2. Brief facts of the case are that the appellant claimed to be a permanent employee of the respondent bank and that at the relevant time, though‑ he was designated as Manager Talhar Branch, but, actually he was working as Assistant Accountant. He claimed that on 23‑1‑1978, he was served with a charge‑sheet containing series of allegations of misappropriation, negligence etc, which was duly and properly replied by him on 17‑2‑1978. The appellant further claimed that before the finalization of any action on this charge‑sheet, he was proceeded under sections 409, 468, 471 and 477‑A P.P.C. read with section 5(2) of P.C. Act 1947 by Summary Military Court, Badin who had convicted him and sentenced him to suffer R.I. for 12 months on 10‑5‑1979 and also with a fine of Rs. 21,400.00. Further the claim of the appellant was that though his conviction was set aside by D. M. L. A. Hyderabad, vide his order dated 8‑2‑1982 , yet, the/ respondent bank had dismissed him from service on 19‑8‑1979 without any reason or enquiry whatsoever, while he was still in Jail. The claim of the appellant was that his dismissal was a result of his conviction by the Summary Military Court. Further the case of the appellant was that after setting aside of his conviction, he submitted a number of appeals/ representations to the bank for his reinstatement in service with full back benefits, but, as he did not receive any response, therefore, he finally sent a grievance notice on 17‑5‑1982 following by his present grievance petition before the learned Labour Court on 13‑6‑1982 under section 25‑A, I. R. O.1969.

3. The respondent bank resisted the petition on a number of grounds, namely, that the appellant had committed various fraud and misappropriation while acting as Manager Talhar Branch, therefore, after service of charge‑sheet and holding enquiry, he was lawfully removed from service. Further, that the appellant was also tried by the Martial Law Court on the same charge and was first convicted but thereafter his conviction was set aside. That, as the appellant was performing managerial and supervisory duties in different capacities and had never performed any manual or clerical duties, therefore, he did not come within the purview of a 'workman' as defined under the Standing Orders Ordinance, 1968 and lastly, that the grievance petition of the appellant was hopelessly time‑barred, hence it was liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard Mr. Bashir Awan, the learned Advocate for the appellant and Mr. Ishaq Abbasi, the learned counsel on behalf of the respondent bank and have also carefully gone through the record and proceedings of the case. At the very outset, I would observe here that it is an admitted position that the appellant was a Grade III Officer, he was charge‑sheeted on an alleged charge of fraud and misappropriation and that without holding any proper domestic enquiry, after affording full and reasonable opportunity to defend himself and even a chance of personal hearing, he was straight away dismissed from service, mainly on a ground that on the same charge, he was being tried by a Summary Military Court, who had convicted him. It is again an admitted position that this conviction of the appellant was subsequently set aside by the Deputy Martial Law Administrator, Hyderabad, exonerating him from the charges and that even, after obtaining a required 'no objection' from the Martial Law Authorities, the improper and illegal as well as premature order of dismissal of services of the appellant., .was also not set aside by the responsible appellate authorities in the respondent bank. There is also an admitted position that the appellant was simply acting as a 'manager' of a small branch of the respondent bank having no powers of 'hire or fire' as admittedly he was not given an opportunity to prove that his actual work was of manual and clerical in nature, so, he was a workman and that the provisions of Standing Orders Ordinance, 1968, were very well applicable to him also. There is also an admitted position on the record that the appellant was already held to be a workman and being this status, the provisions of the Standing Orders Ordinance 1968 were also held to be applicable, by a competent Court and this decision was never assailed before the appellate Court by the respondent bank. In view of all these admitted factual and legal aspects of the present case, the plea of the respondent bank that the petition of the appellant was hopelessly time‑barred, cannot be sustained for the sole reason that it is again admitted position that soon after setting aside of his conviction order by the superior authorities of the then Martial Law, the appellant had approached the respondent bank for setting aside of the ex parte dismissal order passed also by the respondent bank and issuance of his re‑instatement order with full back benefits. Therefore, it is natural to believe without any doubt that unless the respondent bank had required the appellant to produce the 'no objection' from the Martial Law authorities for his re‑instatement in service, it was not necessary for the appellant to obtain such 'no objection and in this process a reasonable time limit was consumed, so, at the later stage, it was not justified for the respondent bank to raise the objection of Limitation and to deprive of the appellant from his legitimate right of re‑instatement in service. It would have been just and correct for the learned Labour Court to have properly considered the facts and circumstances of this case on this point, instead of holding the petition of the appellant as 'time barred' and passing the impugned order. I, therefore, condone the delay and would hold the present petition of the appellant within time and thus maintainable, and thus, would also set aside the impugned order.

6. For the reasons stated by me above, I would set aside the impugned order and allow the present appeal. The appellant is directed to be re‑instated in service forthwith, but, only with 25% (twenty five per cent) back benefits.

A.E./1040/Lb.S

Appeal allowed.