1993 PLC 625
1. MUHAMMAD HUSSAIN ADIL KHATRI, J .‑‑‑The above petitioner, National Bank of Pakistan has assailed the decision of the Sindh Labour Appellate Tribunal, whereby the order passed by Labour Court No.VI, Hyderabad dismissing the grievance petition of respondent No. 2 was set aside and reversed and the said respondent was ordered to be reinstated in service with 50% back benefits.
2. Briefly the facts are that the said respondent was employed in the petitioner‑Bank as Jamadar Massenger at its Sanjhoro Branch. The said respondent was sanctioned house building loan. It was alleged that the loan was not utilised on construction of the house. The second, third and fourth installments were got released on presentation of false and fabricated bills. On 17‑1‑1983 an officer of the Bank was appointed as Enquiry Officer and thereafter on 16‑3‑1983 the said respondent was charge‑sheeted and was dismissed from service on 29‑12‑1983. He preferred departmental appeal, dismissal whereof was communicated to him on 19‑9‑1984. After service of notice on the petitioner he filed the grievance petition, wherein he challenged the dismissal as unlawful. The Sindh Labour Court dismissed the grievance petition holding that the said respondent had specifically admitted that he had obtained the loan on the basis of false and fictitious certificate. The Appellate Tribunal on appraisal of‑ the evidence observed that there was no material on record to hold that the said respondent had admitted his guilt and the conclusion was wrongly drawn by the Labour Court in this regard. It was further found that the said respondent was entitled to House Building Loan, which was repayable to the petitioner‑Bank in instalments. Consequently the findings of the Labour Court were reversed.
3. We have heard the learned Advocate Mr. Partab Rai (or the petitioner and Mr, Salahuddin H. Ahmed, for respondent No. 2.
4. The learned Advocate for the petitioner firstly contended that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are not attracted in respect of the employees of the National Bank of Pakistan by virtue of Proviso to subsection (4) of section 1 of the said Ordinance which provides that nothing in the Ordinance shall apply to industrial and commercial establishments carried on by or under the Authority of the Federal or any Provincial. Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein and also for the reason that the said respondent being a dismissed worker is not covered by the definition of worker and workman as given in section 2(XXVIII) of the Industrial Relations Ordinance, 1909. In support of his contention the learned counsel relied on National E3ank of Pakistan. v. Sindh Appellate Tribunal 1980 PLC 197 and National Bank of Pakistan v. Sindh Labour Appellate Tribunal 1990 PLC 593. He also relied on an unreported judgment in Constitution Petitions Nos. D‑192/87 and 194/87 passed by a Division Bench of this Court. The said authorities in no manner advance the contentions raised by the learned Advocate for the petitioner. On the contrary they lay down the rule that employees of the National Bank of Pakistan being covered by the statutory Rules which have the force of law, and the bank having violated the said rules, employees thereof could take the matter before Labour Court and their grievance petition would be competent. Learned counsel for the respondent relied on Iftikhar Ahmed and others v. President of National Bank of Pakistan PLD 1988 SC 53 and National Bank of Pakistan v. Punjab Appellate Tribunal and 2 others S.C. judgment reported in 1992 PLC 515. In the latter judgment their Lordships with reference to the National Bank of Pakistan (Service Rules, 1973) have observed that the said Rules were revived by the Second Wage Commission, Award announced on 24‑4‑1978 and they were the only statutory rules. The same view was also expressed in the case of Iftikhar Ahmed and others.
5. In the said case of Iftikhar Ahmed and others the decisions given in several petitions by the High Courts of Punjab and Sindh came up for consideration. Their Lordships observed that the award given by the Wage Commission was covered by the term "award" used in section 25‑A(1) of the Ordinance. After considering the other relevant provisions relating to the National Industrial Relations Commission in the Industrial Relations Ordinance, 1969 have observed:
6. "Apart from, as already mentioned above, section 22‑A(12) specifically recognises the competence of Labour Court, albeit subject to some qualifications, to entertain petitions arising from unfair labour practices. It is, therefore, not right to say that section 22‑B (3)(a) confers exclusive jurisdiction on the Benches of the National Industrial Relations Commission to entertain the grievance petitions of the bank employees."
7. In the second case their Lordships while referring to the aforesaid case of Iftikhar Ahmed have clarified that the Wage Commission Award also falls within the scope of the words "any award" as given in section 25‑(1) of the Ordinance, thus entitling employees of all the Banks governed by Wage Commission Awards to seek redress of their grievance from the Labour Courts under the said section. In these circumstances, there can be no escape from the conclusion that the respondent's grievance petition was maintainable before the Labour Court and the objection of the appellant‑Bank is therefore not well‑founded.
8. With regard to the applicability of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 their Lordship, in the above case, have observed that as the right to approach the Labour Court is available to the bank employees under the Ordinance itself, it is unnecessary to examine the further question whether they could also invoke the jurisdiction of the said Court under Standing Order 12(3) of the said Ordinance.
9. It will not be out of place to refer in this context, to the earlier case of Trustees of the Port of Karachi v. Abdul Ghani 1983 SCMR 769, wherein the rule has been enunciated as under:‑‑
10. "This much is however, prima facie obvious from section 25‑A that it is available to a workman who has a grievance in respect of any right guaranteed by or `under any law' which would also include the violation of Service Rules incorporating the settled principles of law."
11. In view of the above declared law the submission of the learned counsel is without any substance.
12. The learned counsel for the petitioner next contended that the learned Appellate Tribunal has granted back benefits in spite of the fact that the said respondent had failed to prove that he was not gainfully employed during the period of his dismissal from service. He relied on the cases of National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and another 1991 PLC 213, Qadeer Ahmed v. Punjab Labour Appellate Tribunal, Lahore and another (PLD 1990 SC 787) and Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore (1991 SCMR 2087).
13. In the last authority, cited by the learned counsel, the august Supreme Court after referring to the previous case‑law including the aforesaid case of Qadeer Ahmed deducted the established principles as under:‑‑
14. "However, two principles are now established under the judgments of this Court‑‑
(a) That back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside; and
(b) As regards the matter of onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employer to show that the workman was not gainfully employed during the period the workman was deprived of service till the date of his reinstatement thereto; subject to the proviso that the workman has asserted at least orally, in the first instance, that he was not gainfully employed elsewhere. On his mere statement to this effect the onus falls on the employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service."
15. A.A/N-474/K Order accordingly.