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Appeal No. SUK‑33 of 1982, heard on 17th March, 1982.

‑‑ Ss. 25‑A & 37‑Appeal‑Decision of Labour Court not on merits but merely on jurisdiction ground‑Appealable.

Ghulam Murtaza Memon v. Sind Industrial Trading Estate Ltd. 1981 P L C 686 rel.

‑‑‑ Ss. 25‑A read with Ss. 22‑A (11), 22‑B (3 and 38‑D and West Pakistan Industrial and Commercial and (Standing Orders) Ordinance (V1 of 19613), S. 1(4), proviso‑Jurisdiction of Labour Court‑Question whether National Bank of Pakistan (Staff) Service Rules, 1980 framed under Award of Wage Commission for Banks and Financial Institutions were to be considered as Statutory Rules for purposes of proviso to S. 1(4) of‑ West Pakistan Indus trial and Commercial Employment (Standing Orders) Ordinance.1968 and within jurisdiction of Labour Court‑Staff Rules; 1980 framed in pursuance of Award of Second Wage Commission in Supersession of such Rules of 1975 framed in pursuance of Award of First Wage Commission‑Not statutory rules so as to exclude employees of Nationalised Banks from operation of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968'=Rules of 1980‑Notretrospective‑Workman charged of acts alleged to have been committed at time when Rules of 1975 framed under ward of First Wage Commission were in force Case, held, governed by those Rules of 1975 and jurisdiction of Labour Court to deal with individual grievance under S. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1963 read with S. 25‑A of Industrial Relations Ordinance, 1969 not affected.

Abdul Aziz v. National Bank of Pakistan 1980 P L C 964 ref.

National Bank of Pakistan v. Nizamuddin Mehar 1980 P L C 1118; A. Moghal and others v, Registrar, Co‑operative Societies and others P L D 1957 Kar. 184 and Fazal Ahmad v. Ziaullah P L D 1964 S C 494 rel.

Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal, Lahore 1982 P L C I distinguished.

M. L. Shahani for Appellant.

Mamoon A. Kazi for Respondent.

Date of hearing: 17th March, 1982.

This appeal is directed against the brief order made by the learned V1Ith Labour Court on 13th January, 1982, summarily rejecting the grievance petition of the appellant. The said order reads as follows:‑

"In view of the decision dated 8th January, 1980, of the Appellate Tribunal in Appeal No. HYD‑18/1979 (Syed Abdul 4ziz v. National Bank of Pakistan), I find this Court has got no jurisdiction to enter tain application under section 25‑A of Industrial Relations Ordi nance, 1969 against the respondent bank, hence this application is summarily rejected."

2. The case of the appellant is that while he was posted as Assistant in the Shikarpur Branch of the National Bank of Pakistan, he was sus pended from service by an order, dated l0th May, 1977, without even being intimated the cause of his suspension. The said order of suspen sion is said to have remained in force for 3 years during which period no enquiry or other proceeding was held against the appellant. The latter challenged the validity of his suspension before the learned VIIth Labour Court at Sukkur, vide application No. SUK-354/79. The learned Labour Court by its decision, given on 7th January, 1980, decided in favour of the appellant and held the suspension to be invalid. The respondent bank challenged the decision of, the learned Labour Court before this Tribunal, but the appeal was unsuccessful. Accordingly the respondent bank by its order, dated 4th March, 1980, withdrew the orders of suspen sion of the appellant with effect from 9th January, 1980. Some 3 months later, on .15th June, 1980, a notice was served upon the appellant, charg ing him with acts of misconduct alleged to have been committed by him between February, 1976 to February, 1977, while he was employed as clerk‑cum‑typist at the Shikarpur Branch, and requiring the appellant to show cause why the penalty of dismissal be not imposed upon the appel lant under the Efficiency and Discipline (Banks and' Financial Institutions) Rules, 1975. It may be pointed out that the said rules were framed by the 1st Pay Commission for Flanks and Financial Institutions, which was constituted by the Federal Government in pursuance of the provisions of subsection (1) of section 38‑C, I.R.O. No action appears to have been taken on the aforesaid show‑cause notice. However, a fresh show‑cause notice, dated 8th September, 1981, was issued against the appellant under Rule No. 37 as the National Bank of Pakistan (Staff) Service Rules, 1980, The allegations and charges in the said show‑cause notice were identical with the allegations contained in the previous notice, dated 15th June, 1980. The appellant submitted his reply/explanation, dated 17th September, 1981, to this show‑cause notice. He also relied upon the report of the Deputy Director, F. I. A., dated 24th April, 1978, to the effect that nothing incriminating has been found against the appellant and the other 3 members of the staff mentioned in his report, either in the investigation of the case or by the Audit team of the bank which assisted the investigat ing officer in the investigation of the case. The respondent bank, how ever, did not consider the explanation of the appellant as satisfactory, add without holding, any other enquiries against him dismissed the appel lant from service by its order, dated 13th October, 1981. The appellant submitted an appeal to the President of the bank but as he obtained no redress he filed a grievance petition with the learned VIIth Labour Court on 13th January, 1982, after serving the requisite grievance notice upon the bank. The learned Labour Court, as already indicated, dismissed the appellant's grievance petition by the brief order reproduced above.

3. I have heard‑ Mr. M. L. Shahani, the learned counsel for the appellant and Mr. Mamoon Kazi who appeared for the respondent bank. It was submitted by Mr. Shahani that the learned Labour Court has wrongly relied upon the decision of this Tribunal in the case of Abdul Aziz v. National Bank of Pakistan (1980 P L C 964), in which case the effect of the Award of the Wage Commission for Banks and Financial Institutions and the Efficiency and Discipline Rules framed by it was not considered and the matter was decided .on the basis of the learned counsel for the workman conceding the position that the Standing Orders were not applicable to the workman, and it has ignored the later decision of this Tribunal in the case of National Bank of Pakistan v. Nizamuddin Mehar (1980 P L C 1118), where it was held that the discipline rules framed by the Wage Commission for Banks and Financial Institutions are applicable to the employees of nationalized banks and that these Rules not being statutory Rules, but in the nature of an Award by the Commission, do not exclude the application of the Standing Orders.

4. Before considering the above contention of Mr. Shahani, I would like to dispose of 2 preliminary objections raised by Mr. Mamoon Kazi to the maintainability of the present appeal. His first objection was that as the grievance petition of the appellant had been summarily rejected by the learned Labour Court on the ground of its being not maintainable and want of jurisdiction, without examining the merits of the case, it cannot be considered to be a decision of the Labour Court for the purposes of subsection (1981 P L C 686) of section 37, I.R.O. and hence no appeal lay against the same. The contention of the learned counsel, it short, was that a decision which was appealable under the aforesaid sub, section must be a decision on merits: This precise issue was considered by this Tribunal in the case of Ghulam Murtaza Memon v. Sind Industrial Trading Estate Ltd. (3), where it was held thot an appeal lay from a decision of a Labour Court, whether the decision was given on merits or the matter was decided only on technical grounds, as in the case of dismissal for default.

5. The second objection of Mr. Mamoon Kazi to the maintain ability of the present appeal was that as the grievance petition of the appel lant involved the enforcement of the award of the Wage Commission for Banks and Financial Institutions the matter lay solely within the jurisdic tion of the N.I.R.C. as provided in subsection (3) of section 22‑B, LR.O, and the jurisdiction of the Labour Courts was ousted by reason of the provision contained in subsection (11) of section 22‑A, I.R.O. In sup port of his contention, the learned counsel relied upon the decision of a learned Single Judge of the Lahore High Court in the case of Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal, Lahore (1982 P L C 1). That was a case where the collective bargaining agent sought to challenge a circular issued by the Pakistan Banking Councial requiring the holding of certain tests and interviews for purposes of promotion of clerical staff to officer's grades and typists and steno‑typists to the grade of steno typists and stenographers respectively on the‑ground that these instruc tions were inconsistent with the provisions of paragraph 237 of the Re port of the Wage. Commission which provided that promotion should be made on the basis of experience, length of service and over‑all performance of an employee. It was held in that case that the workers could seek their redress from the N.I.R.C. as it was a case of individual grievance, but the Labour Courts had no jurisdiction to enforce a right claimed under the Award of the Wage Commission for banks, which was deemed to be an Award of the N.I.R.C. as provided in section 38‑D, I.R.O. This, however, is not a case for enforcement of any right conferred by the Award of the Wage Commission. The issue here is whether the National Bank of Pakistan (Staff) Service Rules, 1980, under which the services of the appellant were terminated, can be considered to be the statutory rules for the purposes of the proviso to subsection (4) of section 1 of the Sind Industrial & Commercial Employment (Standing Orders) Ordinance, p 1968, so as to exclude the application of the Standing Orders to the appel lant and other employees of the respondent bank, This objection, therefore, of Mr. Mamoon Kazi also fails.

6. Reverting back to the contention of Mr. Shahani, it may be pointed out that to the case of Abdul Aziz, the effect of the Award of the Wage Commission for Banks & Financial Institutions and the Efficiency & Discipline Rules by the Commission was not examined and in fact no reference to that Report or those Rules was made in the judgment. It was, therefore, assumed that the National Bank of Pakistan Staff (Service) Rules, 1973, which were framed by the National Bank of Pakistan under Ordinance XIX of 1949, were applicable. This position in fact was conceded by learned counsel appearing for workman Abdul Aziz and he further conceded that the Standing Orders were not applicable to him. It was in these circumstances that it was held that the grievance petition of the employee was not maintainable as it could only be entertained under the provisions of clause (3) of Standing Order 12 read with section 25‑A, I.R.O. The effect of the Report of the 1st Wage Commission for Banks and Financial Institutions and the Efficiency & Discipline Rules framed by it was considered in detail by this Tribunal in the subsequent case of National Bank of Pakistan v. Nizamuddin Mehar (1980 P L C 1118). It was pointed out in this case that the National Bank of Pakistan (Staff) Service Rules. 1973, stood super seded by the Discipline Rules framed by the Wage Commission for the Banks & Financial Institutions and since these Rules could only be deem ed to be an Award of the National Industrial Relations Commission and not statutory rules, the second requirement, i. e. the application of statutory rules, for exempting the employees of the nationalized banks from the operation of the Standing Orders was wanting.

7 In the instant case, there is a further development in 1978, the Second Wage Commission for Banks and Financial Institutions was constituted by the Government and its Report was published in the Gazette of Pakistan (Extraordinary), Part 11, dated 24th July, 1978. Paragraphs 27 and 127 of its Report are pertinent as they deal with the framing of service rules for the employees of nationalized banks. They read as follows:‑

"Paragraph 27 Service Rules: As regards service rules, we have perused, amongst others, the National Bank of Pakistan (Staff) Service Rules, 1973, and the State Bank of Pakistan (Staff) Re gulations (as amended up to 30th June, 1963, and thereafter). We feel that all the nationalized banks should model their rules on the lines of National Bank of Pakistan (Staff) Service Rules, 1973. The State Bank of Pakistan may, however, continue to follow its own Regulations. As for the financial institutions, they may follow their own service rules framed under their respective charters, if any. If not, they should adopt, with necessary modifications, either the IDBP's or ADBP's Staff Service Regula tions. Needless to say, service rules are necessary to describe the rights and obligations of the employees and to indicate a sense of discipline in them,

Paragraph 127 Service Rules: In paragraph 27 of this Award, the Commission has already stressed the desirability of framing of service rules by the banks and financial institutions. The statutory banks and institutions already have under their respective charters, the powers to lay down the terms and conditions of service of their employees. A number of them have already done so and service rules exist in those organizations. They should, however, ensure that these rules do not conflict with the provisions of the Industrial Relations Ordinance, 1969, or the awards of the Wage Commission appointed thereunder. The nationalized commercial banks, by virtue of their identical nature of work and common approach in establishment matters, have an identity of their own and can, as already suggested, have a uniform code of service rules on the lines more or less of the Staff Service Rules (1973) of the National Bank of Pakistan. In their case, the Pakistan Banking Council can co‑ordinate and should ensure that the rules are framed as expeditiously as possible."

8. In compliance with the suggestion of the Second Wage Com mission Award, the National Bank of Pakistan (Staff) Service Rules, 1980, were framed in supersession of the Rules of 1973. Sub‑rule (2) of rule I of the said Rules provides that they shall be deemed to have taken effect from 1st January, 1980, but cases already decided before the com mencement of the said Rules shall not be reopened if the decision taken is in conflict with any of the provisions of the present Rules. These Rules admittedly have not been made under the rule‑making powers contained in section 32 of the National Bank of Pakistan Ordinance, 1949. No reference to the said Ordinance has been made in the Rules. Further more, the previous approval of the Federal Government to the making of here rules has not been obtained, as required by section 32 of Ordinance l; XIX of 1949. It was, therefore, frankly conceded by Mr. Mamoon Kazi that the Staff Rules of 1980, cannot be considered to be statutory rules but were framed by the bank and its Board in pursuance of the Award of the Second Wage Commission.

9. There would appear to be also a major objection to the applica tion of the Staff Rules of the Bank of 1980, to the case of the appellant. As already indicated, the appellant was charged with and penalized for acts said to have been committed by him during the period from February, 1976 to February, 1977, much before the Rules of 1980 came into force. It was contended by Mr. Mai‑noon Qazi that as the 1980 Rules were procedural in nature they should be deemed to have retrospective effect and be applicable to undecided cases of a period prior to their coming into force. In the first place the principle is that it is only the Legislature that can give retrospective effect to its Laws and subordinate legislation cannot be made with retrospective effect unless this power is expressly conferred by the Statute under which such subordinate legislation is framed. In the case of A. Moghal & others v. Registrar, Co‑operative Societies and others (P L D 1957 Kar. 184), it was observed by a Division Bench of the Karachi Bench of defunct High Court of West Pakistan that a provision regarding retrospective effect can only be made by a Legislative body, which is the sovereign authority. In the case reported as Fazal Ahmad v. Ziaullah (P L D 1964 S C 494), the question that arose for consideration before the Supreme Court was whether the amendment in sub‑rule (2) of rule 4 of the rules framed under the Registration of Claims (Displaced Persons) Act, could be given retrospective effect. Rejecting the contention that the amendment could be given retrospective effect, Kaikaus, J., speaking for Supreme Court, observed as follows:‑

"An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power."

10. 1t may also be pointed out that the general rule that no person has a vested right merely in procedure or the forum for redress and that procedural law is retrospective in operation has an important exception, in the absence of any specific provisions in this behalf, it will not erode a vested right or a right which has accrued. In the case reported as a State v. Muhammad Jamil (P L' D 1965 S C 681), the Supreme Court of Pakistan considered the question whether on a change in procedural law by a competent legisla ture, during the pendency of a criminal case, the trial was to be regulated by the old or new procedure.

This issue arose by reason of the amendment made in the Code of Criminal Procedure by the West Pakistan (Amendment) Act, 1964, which debarred an accused person from re‑calling a prosecution witness who had already been examined. The Supreme Court, while observing that if a statute deals merely with the procedure in an action and does not affect the rights of the parties, It will be held to apply prima facie to all actions, pending as well as future but held that a right to recall witnesses already examined before a charge, really matures into a vested right only when a charge is framed, and hence where the charge is framed before the amendment of the law, the accused would have a right to re‑call the witnesses for cross‑examination, notwithstanding the amendment of sections 256 and 257 of the Criminal Procedure Code.

11. In the instant case, at the time when the appellant is‑ said to have committed the acts of misconduct which have resulted in his dismissal from service, the Efficiency & Discipline Rules of 1975, framed by the 1st Wage Commission for Banks and Financial Institutions, were in force. Those rules, as held by this Tribunal in the case of Nizamuddin Mehar, did not exclude the application of the Standing Orders, to the employees of the National Bank of Pakistan.' Consequently, the competence and jurisdiction of the Labour Court to deal with individual grievance of the appellant under clause (3) of Standing Order 12 read with section 25‑A, I.R.O., is not affected.

12. For the reasons discussed by me above, I would set aside the order of the learned Labour Court. As the learned Labour Court has summarily rejected the grievance petition of the appellant on the ground of want of jurisdiction and not dealt with the merits of the case, the matter is remanded back to the learned Labour Court to decide it on merits.

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