MCB bank ltd. VS the Labour Appellate Tribunal

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W.P No. .\ 6 _-1'1 12016 nAn, C ,-,, Sl tt lot( 1 MCB Bank l-td; through its Senior Executive Vice president, Human of Head Rescurces Dt:partment, Head Office Adam Gee, I.I Chundrigarh ltoad, Karachi.

2 General Manager, MCB Bank Ltd; Cahtonment Complex, Peshawar Cantt.

3.Regional Manager, IvICB Bank Ltd; Main Bazar Mangora, Sawat.

.. .'Petitioners'

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1.The Labour Appellate Tribunal NwFp iy,f d,,;, iOA[ nAU/ I 2. The Labour Court through its presiding Officer, peshawar.

3.Shafi Ullah S/o Rehmat Ullah, residt:nt of Sakha Kot,

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Malakand AgencY'

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...,Respond.erfis,

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1 i I I l WRIT PETITION under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 against the judgment/Order dated 19.O2.2O16 passed by Labour Appellate Tribunal, Mangora Sawal..

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Respectfully Submitted as under:-

1- That the addresses ar:.d other particulars of the parties given t t", ' '"!Yiin the title of this Writ Petition are sufficient for service of the 19 AUG l6 notices upon the partir:s. I

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PESHAWAR HIGH COUR MINGORA BENCH/

DAR UL QAZA. SWAT (

FORM OF OR DER SHEET

Coutt of .....

Case No..... -...- of.

o. order Dat of Ni or othaf Procecdlngs wLh Slg,,oluIt Judgc or ,ll.glstra,a .nd tha, ol pedies or or of counsd whera

26.05.2017 No.5 016 with M No. 811 016.

,'al Present: Mr. Farooq Zaman Qureshi, Advocate for the Petitioners (MCB).

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'ri' IBRAHIM KHA J-; For the bull's

eye flat out allegations, Mr. Shafi Ullah (herein Respondent No. 3) to have intentionally omitted to bring forward the balance ofRs. 31,773l- in account No. 1869 on lg.l1.1993 to the prescribed page amounting to misconduct within the meaning of MCB Staff Sprvice Rules, 1981. Subsequently made fraudulently two credit entries of Rs. 1 I ,000/- without specifiing the date and entry of Rs. 39,725l- on 18.12.1993 in the PLS Saving Account No. 1869 at the relevant Page No. 478 of the same ledger with the intention to raise the balance to Rs. 84,498/- committing this gross misconduct in the ';nritten statement handbd over to the Inspection Circle Chief during their visit to Sakhakot (^ Branch, following under the offence covered by the misconduct within the meaning of Bank Sen,ice Rules.

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2 The inquiry report led to issuarrce of letter of dismissal bearing l.lo. ROS/GEN/STAFF/65 dated 6th February 1994. Afterwards, grievance petition under section 25-A read with 5l rtf the Industrial Relations Ordinance 1969 for reinstatement of the Petitioner with all back benefits of service was preferre<l on 20.12.1994 before the leamed Presiding lcer Labour Court Malakand Division at Saidu Sharif S at. The Regional Manager, Muslim Commercial Bank Ltd and the other Respondents including Chairman Disciplinary Committee were put on notice, who submitted their wrirten reply raising various legal and factual grounds.

3.Conseqrlent to, giving the parties their free h and, Shafi Ullah (herein Respondent No. 3l was examined as PW-I, who tras referred ' to varibus necessary documentations regarding inquiry letter, copy of which is Ex. PW-I/I. The inquiry conducted by the Inquiry Officer is Ex. PW-l/2, coyty of charge sheet is Ex. PW-l/3, Representation made by the President of the CBA on behalf of Petitioner (herein Respondent No. 3) is Ex. PW-t/4 (Consisting upon 3 lrages), affidavit of the ,{ccount Holder r I is Ex. PW-1/5, findir.gs of the Inquiry Comnrittee are placed on the record as Ex. PW-l/6, copy of dismil;sal order of the Petitioner (herein Respondent Nb. 3) is Ex. PW-l/7, copy of

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appeal is Ex. PW-1/8 and its repty is Ex. Plr'-Ii9, copy of grievance notice is Er. PW-1/10 and its reply is Ex. PW- l/ll. Copy of transfer letter of the Petitioner (herein Respondent No. 3) is Ex. PW-1/12 and copie's of cutting of the newspapers are placed on record as Ex. PW-l/13 & Ex PW-1/14 alongwith c,rpy of criminal case reg;istered against the Petitioner (herein Respondent No. 3) as Ex. PW-t/15.

Likewise copy in respect of the defaulting liabilities from different loaners is Ex. PW-li 16, copy of letter of General Manager is Ex. PW- 1/17 and the last docunrent is transfer letter Ex. PW-l/l8. inversely, I.bdur Raqeeb, Officer G-1 M.C.B Manager Bal:unbat Branr:h was exanrined as RW-I, who controvefted the, claim of the Respondt:nt l.{o. 3 Shafi Ullah on many fold under the de'.fence line. By the judgment contained in case Nc,. l55iS/19!'6, the dismissal order was held unjustified as i. calls for interference by the leamed Presiding Officer of the Labour Court, who set aside the same and Petitionar (hercin Responderrt No.3) was reinstated in servicr:. Since the affidavit fumished after dismissal by the Respondent No. 3 (hereinlrcfore called as Petitioner) to the effect that during intervt'ning period he was not employed anywhere a:rd being st:ll unemployed, t:

back benefits were also direct,:d for its p ayment. In the wake of his long seriice having experience llained so far, he ArrEsIrD.

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was 'awarded minor penalty of vdthholding of three years increments starting frcm 0 1.0 1. I 994.

A Next ofl', the Regional Manager, Muslim Commercial Bank Ltd and the allied officers of the said Brink preferred an appeal before the Labour Appellate Tribunal the then IJ.W.F.P now Khyber Pakhtunkhwa Peshawar, bearing No. 5211998 with C.M No. 38/1998 titled as '? ional ana Muslim ercial Bank Lld gnd others vs Shafi Ullah" and appeal bearing No. 60 of 1998 titled " Shali Ullah y.t Resional Manaser Muslim Commercial' Bank Lld and olhers" was submitted by the Appellant (herein Respondent No. 3), which were decided in terms of remand to the leamed Labouri Court for the determination of the maintainability and competency of the grievance petition filed under section 25-A of the Industrial Relations Ordinance in the light of the law laid down by the i apex Court of the country reported in 1999 SCI\4R. 373 and in case the Court holds the petition to be maintainable, then it should decide it afresh allowing the parties to adduce additional evidenceron tle point formulated above and determining the status of the Respondent Shafi Ullah g^ (herein Respondent No. 3) as a yorkman. On allowing appeal of the Appellants (Bank) the impugned judgment/order of the leamed Labour Court dated

ATTESU'T

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24.06.1998 was set aside. Whereas in the light of above observations the appeal preferred by Shafi-ullah Appellant (herein Respondent No. 3) u,as decided accordingly.

5 Later, after remand Shafi Ullah (hereinbefore called as Petitioner) was examined as PW-l. Tasbeeullah, Officer/Tvlanager MCB Dargai was examined as RW-I. The grievance petition under section 25-A of Industrial Relations Ordinance 1969 was taken up and decided on 12.04.2000, wherein as referred the dictums of the Hon'ble superior Courts the petition wurs once again accepted and order of reinstatement with full back benefits and wages was announced in favour of Shafi Ullah (herein Respondent No. 3). ftrer alia, the grievance petition was maintained as job description of Shafi Ullatr Manager Grade-III was of the type of workman and punishment for minor mistake was 'there held not commensurate with the guilt if at all was any.

6 Yet anolher effort rvas made to the Chairman Labour Appellate Tlibunai the then NWFP now Khyber Pakhtunkhwa by the Muslim Cornmercial Bank Authorities through Labor App:al No. 11-M of 2013, which was f d- decided on 19.02.2016, wherebS, in view of the authorities referred to in Para 9 of the esteem judgrnent, which is reproduced as under :ior ready reference:- "Keeping in view the tbove evidence it

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appearc tha;t lhe nalure of job of the respondenl wos that "ll'otkman" o^s he performed h"s dalies as clericol in nat'ure being mariaal arul ako other lype of dulies bul the same vtere never supemisory or managerial in nalure.

Besides, loi Grade Bdnk Manager or Otlicer wilh no powu of hire antlJile of making appointmenl and even granting leaves to subordinates was considered lo be "lYorkn:an". The tepresentativ,z of Bank has not slat rd in his evidence lhat the rcspona'enl wrc hattitlg such power mentioned lrcrein above', Even olherwke it is sellted principle laid dowtt b1 the superior Ct'urls lhat Bunk employe,:s of Gract-|, Grade-II or Grude-III fall i

wilhin the.deftnition of workman. Help is sought fi"om all the cases lilted ."Tl!9 Presiden t rhbib Ban k Lld Karachi &3 Olhers Vt Sved Sl,:afa oal Hussain Shakir ,, le 0rled in 19lt8 PLC 39 0t md" v^ Messrs h'abih Bonii Ltd thr ouPh Presidenl & others' vs ullah

Lash arit'rzDorled 2tt12 PLC 101 It was held in the S:pra judgme nt that being an Exan ln Pes h,rrv,.r r H;rrl I UO t1 Bencfi ryr ir.lCi:r,,J,, r-tl .S rvaL t

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employee of Grade-I, Grad e-II or: Grade-III r'all within the definition of "Workman" and lhe appeal was declared dismissed.

7.This is perhaps the frnal round through present i ,i writ petition bearing No. 536-M of 2016 with C.M No. 814- M of 2016 presented by the high OfficerC of the Muslim Commercial Bank Ltd. This time' amongst the previous contesting officers of the Muslim Comrpercial Bank a Senior Executive Vice President lfuman of Head Resources Department, as Petitioner No. l, General Manager MCB as Petitioner No. 2 and Regional Nlanger as Petitioner No' 3 are party, while Incharge Personal Division MCB and Chainman Disciplinary Committee are not mide part of this wflt petltton and ln vlew to suiceed and to set aside the judgments of learned Appellate Tribunals and prayer contained in the judgment of the learned Labour Court r

prayer set in is:-

"IJnder the circumsta4ces, it is mosl

respeclfully prayed that by accepting the present petilion' impugned iudgntents

v^ and orders dated 19.02.2016 passed by the learned Respondent No. 1 through

which lhe iudgment ol Labour Coua

dated 12.01.2000 was conlirmed be

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declared ar illegal and a)ilhout jurisdiclion, agoinsl ,lhe setlled provisions and propositions of hAt slso based upon surmises and conjeclures

and be set aside lhe petition Jiled by lhe Respondenl No. 3 belore the Labour

Courl may kindly be ordered to be

dismissed with special costs.

"Pending dlsposal of the instant wril petilion, t peration ol imPugned

judgment and onler ddted 19.02.2016

passed by lhe learned Respondenl No. I mdy kindly be saspended, in lhe larger interesl ofiuslice,D

"Any other relief deemed iudicious, conducive and appropria* *naty ^oy be awarded to the Pelilioners to meel the

8.Learned counsel for the Petitioners who has all the way came from L,ahore has been heard with composure and available record !3one through with his able assistance' q-

9.For the leason that the Respondent No' 3 Shali Ullah was employed by the authorities of the Muslim Commercial Bank in the year 1973. During his posting, he remained Accountant/Officer Grade-III, he committed #te# gc l?L

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certain acts of miscc,nduct and irregularities, so he was charge-sheeted and his reply -vras found :rnsatisfactory.

Thereby Departmenta: inquiry was initiated ag,ainst him and upon its completion, he was dismissed frc'm service on

10.The frrst of its kind objection is with regard to that Shafi Ullah, (the Respondent No. 3) by his designation as Manager Grade-III, was assigned rlle duties of Accountant could not fall '.vithin the category of "workman", as such ,Managers are of the rank of Officers, hence on this score alone the grievance lletition is not maintainable and it orrght to be dismissed. A':cording to the Workman's Compensation Act, 1923, it cama into force on the first day of July D24, itde{ines the "worLran" at Serial

(n)of the definition ciause, which reads as urider:

(n)"workma n" means any person (other than a person whose employment is of a casual nature and vrho is emPloYed otherwise than for thr: purposes of the employer's trade of busirless) who is-

(i)a railway scrvant as tlefincd in seption 3 of the Railwry Act,. 1890, not a perrnanent employe<t in any administrative district or sub-divisional oflice ol railway and not employcd in anY suth caPacitY as it specil-led II' rr

(ii)emptoyec (n**) on rnonthly wages not excceiling tlrree thousand rupees in any

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such capacity :rs is specified in Schedule-II.

11.The referral authorities in the judgment contained in Labour .A.ppeal No. ll-M of 11013 titled as *Muslim Comme'rcial Bank Ltd ts Shafi Ullitlt" , under the para-wise discussion in Para 8 and in view of the judgments referred in Para 9 of the Supra judgment it v'ould be mere iit repetition as bbviousli being an employee of Grade- III, the Respondent No. 3 ph,rfi Ullah fall within the definition of "workman". Herd, learned counSel for the Petitroners ,referred to the wisclom contained in the judgment of Hon'ble Supreme Court of Pakistan cited as, 2OI5 SCMR 13 1 "Nalional Bank of Pakkt''an and 'her v Anwar

Shah and others", whereby similar matter pe;rtaining to the

affairs and status of the bank employees of the National Bank of Pakistan c'ame tbr disposal' Thb appeal was allowed in terms that under the Industrial $elations Act' i

2012 ( Act No. X of 2012) the "workmanl' scope of the

National Bank of Pallistan Offrcis of Grade-l to III were

not "workman" on th'i basis of uirion s claim,no dec laration r- could be given, that the Officers in the es'tablishment of by National Bank of Pa!:istan were workmen' Qrder passed National Industrial Relations Commission to the effect that and Officers Grade- I to III were not:workman u'as up-held

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appeal was allowed accordingly. There is mark difference between the administrative service structure of all Bank employees of the National Bank of Pakistan with comparison to the private run business Banks like Muslim Commercial Bank and Habib Bank t imitia and other similar privatized Banks, thus, Shafiulllah thL Respondent No. 3 being an employee of the private Bank i'e' Muslim Commercial Bank there would hardly be much of the administrative capacity of the said manger as compared to the Grade-l to III officers of the National Baqk of Pakistan and that of Muslim Commercial Bank Pri'rate Ltd' The National Bank of Pakistan (NRP) is a major Pakistani commercial Bank with headquafter in Karachi' Although State owned, it operates as commercial Bank while still continuing to act as trustee of public funds and as the agent to the State Bank of Pakistan. Whereas Muslim Commercial Bank Limited (fonnally Muslim Commercial Bank) previously named as (Manjoo Co-operative Bank) was incorporated by the l.damjee Group on July 9, 1947 under the Indian Compani:s Act, VII of 1913 as a Limited first Company. It was nationalized in 1974, this was the Bank to have been privatized in 1991' llaid down for

12.Regardirrg jurisdiction criteria

institution of the grievance petition before the Labour Court ^frEsrzr' r*.nl(nJ Dnchaw.'lr tliqlr Colrr tsench N,l,,rccrliil.irlr rt'O/z;r' Swat'

followed by the Honc,rable Labow Appellate Tribunal of the Khyber Pakhtunkhwa, suffice it to say, that at the time when this grievance petition unde'r section 2:;-A read with 5l of the Industrial, Relations Ordinance 1969 being preferred on 20th December 1994, by that time this important legislation of the Federal Govemment Industrial Relations Act 2Ol2 and then Khyber .Pakhtunkhwa Industrial Relations Act (KPK X'VI of 201C) were not in

existence. It is also very much important ttat having not

given its birth, the written reply srrbrnitted by the Petitioners have Officers of the Muslim Commercial Bank Authorities not set it as defence and uo objection was raised at the reletant time' The grounds taken in appeal by the leamed was taken is to senior counsel when under such cefence line oust the jurisdiction'of the Latrour Court and sit in the jurisdiction of National Industrial Relations Commission OIIRC), this is a lirst objection in this writ petition' as to Conscious of the fact'that with regard to cluestion whether Provincial Labour Court or Natirnal Industrial jurisdiction in Relations Commissi<'n (NIRC) would have

relation to such an industrial <lispute' lt trras {^ to be seen

holding the jurisdiction and it ir; not nature of the dispute'

is a trans- Muslim Commercial Bank Private Ltd of course provincial institution having its head-office in Karachi and

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operating its Branches .n all the four (4) provinces including capital territory. Thus in view of tre judgmenl contained in 2011SCMR 535 "Pafik tan Telecommunicahon Coitoanv Ltd vs Memb er NIRC znd olhers' ', the proper forum would be National Industrial l{elations C,tmmission (NIRC) which would have exclusive jurisdictiou in relatio.r to such an industrial dispute. Herr: the matter would agairr refer to with the Interpretation of iitatutes, where the preamble of the Industrial Relations A*, 2072 spr:aks of it st.all come into force at once on its promulgation on the 14th March 2012 on the strength of Ga:;ette of Pakistan, Extraordinary, Page No. 161-216, 14th March 2012. At the very outset, provisions of the Industrial l{elations Act, ZO|Z have over- li riding effect over all, the provincial labour. laws. In this behatf, further guidance can be sought fr,rm the Supra judgment of the Hon'ble Supreme Court of Pakistan.

13.According to the judgment of the Hon'ble Baluchistan High Corrrt reported fu PLD 1997 (Ouettd 69 "Khudai Dad alias and olhers vs 'the State and olhers", wherein the relevant citations are'reproduced as f, under:

k) Interoretdlion of stfltues.

Repeal of earlier law. Law having not b.een expressly repea'led cunnol he infetred lo have been impliedly repealed, unless i! is

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shown lhal the former and the latler laws

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are inconsislent and they cannot co-exist.

(e)Interoretation of slataes.

Law altered durhg pendency, ol an action. Elfecl llhen the law is allered during the pendency of an action, the fights of lhe parties are decided according lo the law as il existed when the- aclion was. begun anle;s lhe new slatate shows a cleaT intention ,lo vary such righls. I

Crowford's Inlerprctatit n of Laws para. 2.96 1965 SC 681 reJ

... Lower Courl's order without iurisdiclion. Appeal. llthere a Court not having jurisdiction wrongly exercises such a jurisdiclion, an appeal lies from lhal decision in lhe same mannet as an appeal lies from a decision wilh iurisdiction. I As by the tirne the legislation being pertain to the Industrial Relations Act,'2012 was not in field, therefore, the verdict of the learned Labour Court is u'ithin its jurisdiction and the Hon,:rable Appellate Tribunal entertaining appeal would have ; the same jurisdiction as the appeal lies .from such r^ decision in the same manner as an appeal lies from a decision with jurisdiction.

14.The extension of the la'rvs whether ATTESTEd l,// | Exap{iner Fnslrilv,rr' l'1irl i CorrrI Eonch i\,li'tiir:t.ti i.,r,.111-Q;7n. S,,yat.

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that be Khyber Pakhtrrnkhwa Industrial Relations Act, 2010(KPK Act No. XVI of 2010), has been' extended to PATA on 20.04.2017, whereas the Industrial Relations Ordinance 2012 till so frir has never been extended to PATA. Thus the applicability of the law of Industrral Relations Act,2012 (Act.

No. X of 2012) irr the preamble having over- riding effect over all the provincial laws shall have least concern for its elfect and over-riding effect in this part of the country which is Tribal built administratively run by the Provincial Government.

15.For all reasons, prayer set ln this writ petition is not of credence for its acceptance, hence the same stands d ismissed ' in limine alongwith CM.

Announced L Dl..26.5.20t7 0

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