MUHAMMAD ANWAR KHAN Versus PRIME MINISTER

NASIR ASLAM ZAHID, J.--- This judgment will dispose of Constitutional Petition No. D-74 of 1986 filed by the National Bank of Pakistan (employer) hereinafter referred to as "the Bank", and Constitutional Petition No.D-609/85 'iced by Nizamuddin Memon an employee of the Bank, hereinafter referred to ,a-. "the employee", as both the petitions arise out of the judgment dated w-7-1)85 of the learned Sindh Labour Appellate Tribunal allowing the appeal A the employee and ordering his reinstatement in service against which the lank had filed Constitutional Petition No.74/86 but as the Tribunal granted ally 25% of the back-benefits the employee filed Petition No. 609/85 claiming kill back benefits. The employee joined service of the Bank as a money tester on 9-11-1964. He was promoted as Senior Head Cashier at Sukkur Zonal Office of the Bank. With effect from 16-12-1977 he was placed under "Suspension and, after about one year and three months, he was served with a charge-sheet, dated 3-3-1979. Additional charge-sheet was served on him on 23-4-1979. The employee, replying the charge-sheet, denied the allegations. A domestic enquiry was held in January, 1980.. According to the employee, no proper enquiry was held as no witnesses were examined and the documents relied upon and presented by the employee were not brought on record. After the enquiry, the employee was dismissed from service with effect from 29-1-1981. He preferred a departmental appeal on 28-2-1981, which was withheld by letter dated 18-6-81 of the Assistant Vice-President (Admn.) of the Bank. The letter only stated that his appeal had been withheld by the competent authority. The employee then made a representation dated 10-8-1981 to the Assistant Vice-President of the Bank stating that the appeal had been wrongly withheld and decision on the appeal be communicated to him. He received a reply dated 29-8-1981 that as no new points had been raised, the competent authority i.e. the President, had withheld the appeal. The employee then sent a grievance notice on 12-10-1981 which was replied by the Bank on 14-10-1981 not acceding to the request of the employee, who then filed a grievance petition before the Labour Court at Sukkur. By order dated 5-11-1981, the Labour Court dismissed the grievance petition as not maintainable. An appeal was filed before the Sindh Labour Appellate Tribunal which was allowed by order dated 1-3-1982 and the matter was remanded to the Labour Court for giving an opportunity to both the parties to lead evidence on the point as to what was the nature of duties which the employee was required to perform and thereafter given a fresh decision. On remand, evidence was adduced by the parties and, thereafter, by order dated 28-5-1983, the Labour Court. held that the employee was not a "workman" and the application under section 25-A of the I.R.O., 1969 filed by the employee was time-barred. Being aggrieved, the employee filed an appeal which was allowed by the impugned order dated 8-7-1985 of the Sindh Labour Appellate Tribunal. It has been held by the impugned order that the employee was a `workman' and his application under section 25-A was not time-barred. On merits, it was held that the charge-sheet issued to him was ambiguous and that no papers of the enquiry were produced by the Bank. Allowing the appeal, the order of the Labour Court was set aside and the employee was ordered to be reinstated but only 25% back-benefits were granted. Against the grant of partial back benefits, the other Constitutional Petition No. D-609/85 was filed by the employee. We have heard Mr. Hidayatullah Abbasi, learned counsel for the Bank and Mr. M.L. Shahani, learned counsel for the employee.

2. On the question whether the employee was a workman or not, we find that the evidence adduced before the Labour Court supports the finding of the learned Sindh Labour Appellate Tribunal that the employee was a "workman". The Bank had mainly relied on the designation of the employee as Senior Head Cashier although it was also averred that he was performing duties of supervisory, administrative and managerial nature. However, the evidence on record had shown that the essential duties of the employee were not supervisory and managerial in nature. 1n his evidence, the employee had stated that he was preparing vouchers, bills, making entries iq the ledger and countersigning on other documents, preparing Bank statements and also doing other miscellaneous clerical work. On this statement, there was no cross -examination of the employee. It was also admitted that the employee was not the holder of any power of attorney from the Bank which had been granted to A the officers of Grade-11 and Grade-111. No case has been made to disturb the finding of the Labour Appellate Tribunal that the employee's duties being primarily of clerical nature, he was a "workman" and, therefore, his application under section 25-A of I.R.O. was maintainable.

3. On the question about the grievance petition having been filed after the limitation period, it may again be observed that the employee was dismissed from service with effect from 29-1-1981. He preferred a departmental appeal on 28-2-1981. By letter dated 18-6-1981, he was informed that his appeal had been withheld and this was communicated to him on 24-6-1981. Thereafter he made a representation that his appeal had been wrongly withheld and decision on his appeal be given and communicated to him but he was informed by letter dated 29-8-1981 of the Bank that his appeal had been withheld by the President of the Bank, the competent authority. Thereafter the employee gave a grievance notice and then fled the application under section 25-A of I.R.O 1969. The Tribunal has taken the view that, although there was an earlier reply about the withholding of the appeal, the reply dated 29-8-1981 of the Bank should be taken as the final reply of the Bank. If the reply dated 29-8-1981 of the Bank is taken as the final reply on the appeal of the employee, the grievance petition was not barred by time. No B cogent argument was advanced that the finding of the Appellate Tribunal that the reply for determining the period of limitation in this case, was invalid. The finding that the application under section 25-A was filed within time is not liable to interference.

4. On merits, it is admitted by Mr. Hidayatullah Abbasi, learned counsel for the Bank, that no evidence was led as regards what transpired in the domestic enquiry. No papers relating to the enquiry were produced before the Labour Court. Even the enquiry report was not produced. The only reason given by Mr. Hidayatullah Abbasi for not producing this material which was necessary in this case for coming to the conclusion whether the Bank had taken a lawful decision for dismissing the employee from service, was that, in the first round of litigation, the Labour Appellate Tribunal had remanded the case to the Labour Court to determine only the question whether the employee was a "workman" or not. We find no merit in this submission. In the first round, no evidence was recorded by the Labour Court and the grievance petition was dismissed as not maintainable. In appeal, the order of the Labour Court was set aside and the case was remanded to the Labour Court for fresh decision after giving an opportunity to the parties to lead evidence about the nature of duties of the employee. But this did not mean that the Labour Court was only required to determine whether the employee was a "workman" or not. The matter had been remanded for fresh decision by the Labour Court. In fact the employee had led evidence on merits also. Admittedly, no objection had been raised on behalf of the Bank that evidence on merits could not be led by the employee and the Labour Court was restricted to decide only whether the employee was a "workman" or not. In fact, the Labour Court noted that the following points required consideration:-

(a) Whether the applicant was a workman?

(b) Whether the grievance notice given by the applicant was time barred?

(c) Whether the applicant had been dismissed from service illegally?

As the decision of the Labour Court on points (a) and (b) went against the employee, he did not decide point No. (c). The evidence was available on record and the Appellate Tribunal, after deciding the first two points in favour of the employee, decided the matter on merits also and, in our view, in following this procedure it did not commit any illegality. The Appellate Tribunal was competent to decide the case on merits and no illegality was committed by the Tribunal 3n not remanding the case to the Labour Court for deciding point No.3.

5. On merits, the decision of the Labour Tribunal, as observed earlier, was that the charge-sheet was ambiguous and that the enquiry report and other papers relating to the enquiry had not been produced in evidence before the Labour Court. On the point of charge-sheet being ambiguous, we are of the view that the reasoning of the Appellate Tribunal is not sound, but, on the other point, the view of the Tribunal is correct. The Tribunal noted that the report of the enquiry officer had not been brought on record. It was observed that, as the report of the enquiry officer had not been brought on record, it could not be said that the domestic enquiry was held according to the Regulations and the law. As noted above, the case of the employee was that no proper enquiry was held, no witnesses were examined in the enquiry and no document of the employee was placed on record. On these matters, the finding C went against the Bank as the enquiry papers and enquiry report were not produced in evidence before the Labour Court. No ground has been made out for interference.

6. As regards the claim of employee in Petition No. D-609/85 that full back-benefits should have been granted to him, Mr. M.L. Shahani has relied upon an unreported judgment dated 12-11-1990 of Division Bench of this Court, of which one of us was a member (Nasir A. Zahid, J.), in Constitutional Petition No.D-6(10/85, (National Bank of Pakistan v. Sindh Labour Appellate Tribunal), in which case the same learned counsel, who are appearing before us, were representing the parties. In that judgment it was held as follows:-

"In our view, once the Labour Court or the Labour Appellate Tribunai comes to the conclusion and gives a finding that the termination of the services of an employee is unlawful, the employee should, as a matter of course, be granted back benefits, unless the employer is able to establish by cogent evidence that the employee was gainfully employed elsewhere. In case it is established that the employee was gainfully employed, the Labour Court or Tribunal should then assess the amount earned by the employee in such gainful employment and set off such amount against the amounts due to him as back-benefits. The purpose of such exercise, therefore, should be to place the employee in a position as if his services had not been terminated".

In the present case, the order terminating the services of the employee has been held to be unlawful by the Labour Appellate Tribunal which order has been affirmed by us. The employee had claimed full back-benefits. No evidence has come on record relating to his employment elsewhere during the ID period his services remained terminated. The Sindh Labour Appellate Tribunal had granted only 25% back-benefits but no reason at all is given for such partial relief. In our view, in the circumstances, full back-benefits should have been allowed.

8. As a result, Constitutional Petition No.D-74/86 filed by the National Bank of Pakistan against reinstatement of Nizamuddin is dismissed. Constitutional Petition No.D-609 about full back-benefits filed by Nizamuddin is allowed.

There will be no order as to costs

H.B.T./N-380/K Order accordingly.