Askari Bank Ltd VS NIRC, etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.4405 of 2021 Askari Bank Limited Versus National Industrial Relations Commission and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 04.04.2022 Mr. M. Wisal Khan, Advocate for the petitioner, Mr. Iftikhar Ahmad Bangash, Advocate along with respondent No.3 in-person.

Through the instant writ petition, the petitioner, Askari Bank Limited, impugns the order dated 17.09.2021 passed by the learned Full Bench, National Industrial Relations Commission (“N.I.R.C.”), whereby the appeal filed by respondent No.3 (Bilal Shah Bakht), was allowed and the order dated 27.06.2019 passed by the learned Member, N.I.R.C., was set-aside. Furthermore, the learned Full Bench, N.I.R.C. allowed respondent No.3’s grievance petition and directed the petitioner to reinstate him in service with all back benefits. Vide the said order dated 27.06.2019, the learned Member, N.I.R.C. had returned respondent No.3’s grievance petition by invoking the provisions of Order VII, Rule 10 of the Code of Civil Procedure, 1908 (“C.P.C.”) on the ground that respondent No.3 did not fall within the definition of “a worker or workman” as defined in the Industrial Relations Act, 2012 (“the 2012 Act”).

2.The record shows that vide letter dated 11.01.2008, respondent No.3 was appointed as Officer Grade-II (“OG-II”) by the petitioner. Clause 7 of the terms and conditions on which respondent No.3 was appointed gives the petitioner the right to dispense with his services without assigning any reason on three months’ notice or payment of basic salary for the said period except where the termination is the result of disciplinary action.

3.On 13.05.2013, respondent No.3, while serving in OG-II at the petitioner’s branch at Shinkiari, was transferred to the petitioner’s branch at Mansehra Road, Abbottabad. Respondent No.3 did not join his duties at the bank where he was transferred. Vide letter dated 28.05.2013, the petitioner’s Area Manager at Peshawar was informed by the petitioner’s branch at Mansehra Road, Abbottabad that respondent No.3 had not reported for duty. On 05.06.2013, respondent No.3 was called upon by the Area Manager of the petitioner to explain as to why he had not joined his duties at the new place of posting. Vide letter dated 07.06.2013, respondent No.3 requested the Area Manager of the petitioner not to transfer him from Shinkiari to Abbottabad due to residential accommodation being expensive in Abbottabad. Respondent No.3 had also asserted that he was not in a medical condition to be transferred. Apparently, respondent No.3’s said reply did not find favour with his employer. On 25.06.2013, a charge sheet was issued to respondent No.3 wherein it was alleged that he had unauthorizedly absented himself from duty with effect from 16.05.2013 at the place where he was posted i.e., the petitioner’s branch at Mansehra Road, Abbottabad.

4.Respondent No.3 assailed the said charge sheet dated 25.06.2013 and the letter of explanation dated 05.06.2013 in a civil suit before the Court of the learned Civil Judge, Abbottabad. Respondent No.3 had also sought the recovery of his salary and other service benefits in addition to damages amounting to Rs.2 million. Vide judgment and decree dated 09.02.2016, the Court of the learned Civil Judge, Abbottabad decreed the said suit and granted damages amounting to

Rs.2,00,000/- to respondent No.3. The petitioner preferred an appeal against the said judgment and decree before the Court of the learned Additional District Judge, Abbottabad. Vide judgment and decree dated 22.12.2016, the said appeal was allowed and the judgment and decree dated 09.02.2016 passed by the learned Civil Court was set-aside. There is nothing on the record to show that the Appellate Court’s judgment and decree was challenged any further by respondent No.3.

5.Vide letter dated 21.04.2015, the petitioner dispensed with respondent No.3’s services pursuant to clause 7 of respondent No.3’s appointment letter dated 11.01.2008. The said letter dated 21.04.2015 was assailed by respondent No.3 in a grievance petition filed before the N.I.R.C., Peshawar Bench. Vide order dated 27.06.2019, the said grievance petition was returned on the sole ground that respondent No.3 did not fall within the definition of a workman. Respondent No.3’s appeal against the said order was allowed ex-parte by the learned Full Bench, N.I.R.C., vide order dated 11.08.2020, whereby respondent No.3 was reinstated with back benefits. The petitioner assailed the said order dated 11.08.2020 in writ petition No.2348/2020 before this Court. The said petition was “partly accepted” by this Court, vide order dated 07.12.2020, the operative part whereof is reproduced herein below:- “4. In view of the above, this Writ Petition is partly accepted and impugned order dated 11.08.2020, passed by the learned Full Bench, N.I.R.C., Islamabad is set-aside.

5.With the consent of the learned counsel for the parties, this case is remanded back to the learned Full Bench, N.I.R.C., Islamabad with a direction to decide the matter after affording an opportunity of hearing to both the parties within one month. Both the parties shall appear before

the learned Full Bench, N.I.R.C., Islamabad on

6.The post-remand proceedings culminated in the order dated 17.09.2021 passed by the learned Full Bench, N.I.R.C. which has been assailed by the petitioner in the instant writ petition.

7.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the sole ground on which the learned Member, N.I.R.C. rejected respondent No.3’s grievance petition was that he being an officer in the petitioner / bank, did not fall within the definition of “workman;” that in the impugned order dated 17.09.2021, the sole question that was decided by the learned Full Bench, N.I.R.C. was whether the petitioner fell within a definition of “workman;” that after holding that respondent No.3 was a workman and therefore could have filed a grievance petition before the N.I.R.C., the learned Full Bench, N.I.R.C. should have remanded the matter back to the learned Member, N.I.R.C. for a decision on merits on respondent No.3’s grievance petition; that the reasoning in the learned Full Bench, N.I.R.C.’s earlier ex-parte order dated 11.08.2020 (which had been set-aside by this Court vide order dated 07.12.2020 passed in writ petition No.2348/2020) could not be treated as part of the subsequent impugned order dated 17.09.2021 passed by the learned Full Bench, N.I.R.C.; and that since the said impugned order does not address any of the objections or the reply filed by the petitioner to respondent No.3’s grievance petition, the same is not sustainable and liable to be set-aside. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

8.On the other hand, learned counsel for respondent No.3 submitted that the petitioner has made respondent No.3 suffers ever since the year 2013 when the charge sheet was issued to him; that the findings of the learned Full Bench, N.I.R.C. in its orders dated 11.08.2020 and 17.09.2021 to the effect that respondent No.3 was a “workman” are based on evidence on the record; that the petitioner had admittedly conducted no inquiry against respondent No.3 before his services were dispensed with; that the law obligated the petitioner to conduct an inquiry in accordance with the law even where respondent No.3’s employment contract authorized the petitioner to terminate the same without assigning any reasons; that the charge sheet issued to respondent No.3 on 25.06.2013 remained unsubstantiated; and that the decision of the learned Full Bench, N.I.R.C. on the merits of the case contained in the order dated 11.08.2020 should be read as part of the order dated 17.09.2021 which has been impugned in the instant petition. Learned counsel for respondent No.3 prayed for the writ petition to be dismissed.

9.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 6 above, and need not be recapitulated.

10.Perusal of the order dated 27.06.2019 passed by the learned Member, N.I.R.C. shows that the sole ground on which respondent No.3’s grievance petition was returned by invoking the provisions of Order VII, Rule 10 C.P.C. was that respondent No.3 did not fall within the definition of the term “workman” provided in Section 2(xxxiii) of the 2012 Act.

11.Respondent No.3’s appeal against the said order dated 27.06.2019 was allowed by the learned Full Bench, N.I.R.C. vide order dated 11.08.2020. Vide the said order, the learned Full Bench, N.I.R.C. also allowed respondent No.3’s grievance petition and directed the petitioner to reinstate him with back benefits. This order of the learned Full Bench, N.I.R.C. was admittedly set-aside by this Court, vide order dated 07.12.2020 passed in writ petition No.2384/2020 and the matter was remanded to the learned Full Bench, N.I.R.C.

12.All that the learned Full Bench, N.I.R.C. did was to determine that respondent No.3 was a workman. I have gone through the said decision of the learned Full Bench, N.I.R.C. and found the same to be inconsonance with the evidence that was adduced in the proceedings before the learned Member, N.I.R.C. What the learned Full Bench, N.I.R.C. did not do in the post-remand proceedings was to give a decision on the merits of the case. The question whether the petitioner committed violation of any of the provisions of the 2012 Act or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (“the 1968 Ordinance”) has been left undetermined. The learned Full Bench, N.I.R.C. could not direct the petitioner to reinstate respondent No.3 with full back benefits without determining whether the petitioner had violated any of the provisions of the 2012 Act or the 1968 Ordinance by dispensing with respondent No.3’s services vide letter dated 21.04.2015. The learned Full Bench, N.I.R.C. also omitted in determining whether the invocation of clause 7 of respondent No.3’s employment contract dated 11.01.2008 could be treated as an unfair labour practice or a

violation of any of the provisions of the 2012 Act or the 1968 Ordinance.

13.The fact that respondent No.3 had been found to be a workman gave the jurisdiction to the N.I.R.C. to decide his grievance petition on merits. A finding that respondent No.3 was a workman would not ipso facto result in his grievance petition being allowed. The grievance petition needed to be decided on merits by taking into consideration the evidence recorded by the learned Member, N.I.R.C.

14.Since the impugned order dated 17.09.2021 passed by the learned Full Bench, N.I.R.C. has not dealt with respondent No.3’s grievance petition on merits, and since the learned Member, N.I.R.C. had also not dealt with respondent No.3’s grievance petition on merits, therefore, the instant writ petition is allowed and the impugned order dated 17.09.2021 passed by the learned Full Bench, N.I.R.C., is set-aside. The matter is remanded to the learned Member, N.I.R.C. for a decision on respondent No.3’s grievance petition on merits. The determination made by the learned Full Bench, N.I.R.C. as to respondent No.3’s status as a workman shall be binding on the learned Member, N.I.R.C. The evidence in the matter has already been recorded by the learned Member, N.I.R.C., who is expected to decide the said grievance petition bearing in mind the law laid down by the Hon'ble Supreme Court in the case of Allied Bank Limited Vs. Zulfiqar Ali Shar (2021 SCMR 1213). There shall be no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*