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Appeal No.FD-289 of 1983, decided on 21st March, 1984.

---Para.258(4)--Dismissal for misconduct of Bank employee--Calling explanations Competent authority--Appointing authority or an authority authorised by competent authority--Explanations called by in-competent authority and dismissal order also passed by incompetent authority- Alleged misconduct proved--Dismissal order, held, not sustainable- Appellate Tribunal awarding re-instatement without back benefits- Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 38(3).

---Ss.2 (xxviii ) & 25-A--Words "is employed" in S.2 (. xxviii.) do not mean only a person in service--Workman dismissed or removed from service also can seek remedy before Labour Court.

Munawwar Ahmad Javed for Appellant.

Irshad Ali Mian for Respondent.

Date of hearing: 13th March, 1984.

The appeal captioned above arises from the decision dated 5-5-1983 passed by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad dismissing the grievance petition of the appellant for his reinstatement in service. On behalf of the respondent cross-objections have also been filed that are being decided alongwith the appeal.

2. The appellant was a cashier. He was dismissed vide order Exh.P-8 dated 7-7-1981 on the allegation that he had changed the amount of his medical bill from Rs.6 to Rs.660 and withdrew the amount of Rs.275 sanctioned as medical charges. The said amount was withdrawn on the same date on which it was credited to his accounts.

3. The learned lower Court has held that the grievance notice and the grievance petition were within time and holding that the charges were established and that charge-sheet was given and dismissal order was passed by competent authority dismissed the grievance petition.

4. According to para. 258(4) of the first Wage Commission Award, explanation is to be called by the competent authority. This term is not defined either in the Award or in some other law. It, therefore, means the authority who is competent to appoint or to dismiss or an authority authorised by the competent authority. Charge-sheet was given by Branch Manager. Admittedly, he was not the appointing authority. No appointment order was produced by the respondent to show that the Branch Manager had appointed the appellant. So far as dismissal is concerned, the Vice-President passed the order. So, charge-sheet was not proved to have been given by the competent authority and the learned lower Court has wrongly held otherwise.

5. The order of dismissal too was not passed by the competent authority. By the time dismissal order was passed the M.C.B. Staff Services Rules, 1981 had been enforced. The post of cashier belongs to category-II. According to Appendix I clause (12), President and Senior Executive Vice-President, Administration Division, Head Office and Head of Circle Office are competent to pass the dismissal order but it is evident from the dismissal order Exh. P-8 that it was passed by the Vice-President, Zonal Office in other words Zonal Head. The employees belonging to category-III may be punished by the Zonal Head but not the ones belonging to category-II. Exh.P-8 does not say that the Head Office had decided to dismiss the appellant. Realizing that the dismissal order was passed by incompetent authority, letters Exhs. R-3 and R-3/2 were afterwards prepared but even that device did not remain successful. Letter Exh.R-3 was written to the Head Office recommending that the appellant be dismissed. The Head Office in reply sent letter Exh. R-3/2 informing that the Head Office had decided to dismiss the appellant and asked the Circle Office to comply and to send copies of the dismissal order to the Head Office to be conveyed to the appellant. Now if the dismissal order was to be passed and signed by the Circle Office, why the Circle Office, Faisalabad should not have conveyed the order to the appellant at Faisalabad and why the dismissal order should have been conveyed by the Head Office, Karachi This is surprising and strange. The Head Office did not actually, convey the dismissal order to the appellant but the Zonal Head (Vice-President Zonal Office) conveyed the order which is Exh. P-8. It is thus more than clear that Exhs. R-3 and R-3/2 were the outcome of afterthought.

6. Still further amusing that according to Appendix I clause (12) Senior Executive Vice-President, Administration Division, Head Office, is competent to punish upto category-II but letter Exh.R-3/2 was not sent by the said authority but the Vice-President, Head Office. When the latter had no, jurisdiction himself, how could he legally authorise another office So, even if for the sake of arguments it be said that Exhs. R-3 and R-3/2 were issued in the beginning and on the dates they carry, still the appellant was dismissed by an un-authorised person.

7. In cross-objections it is contended inter alia that the learned lower Court has wrongly held the grievance notice and the grievance petition as within time. I do not find any force in this contention. Admittedly, the appellant had brought departmental appeal Exh.P-9 on 14-7-1981. Its reminder is Exh.P-10. It has not been proved that the result of the appeal was ever conveyed to the appellant. So, no period of limitation started and the grievance notice and the grievance petition were within time.

8. One of the objections taken in cross-objections is that the appellant being a dismissed person was not a workman as it was not shown that his dismissal had any connection with any industrial dispute that may be pending. No such plea was taken in the written statement. For the first time such objection cannot be taken by way of cross -objections. Even otherwise the objection is not well-founded. The provision that the persons whose dismissal has any connection with any pending industrial dispute is for those who otherwise are not covered by the definition of workman. The words is employed' occurring in section 2(xxviii) of the Industrial Relations Ordinance, 1969 does not mean that only that person can come to the Labour Court who is in C service. Not only in section 2(xxviii) of the Industrial Relations Ordinance, 1969 but in other enactments also present tense is used such as section 2(i) of the Standing Orders Ordinance, 1968, section 2(n) of Workmen's Compensation Act, section 2(h) of the Factories Act, section 2 of Civil Servants Act, 1973 (Central), section 2 of the Civil Servants Act, 1974 (Provincial) and section 3 of the Railways Act. If it be held that only those persons can come to the Courts who are in service then it would mean that for dismissed and person removed from service there is no remedy. This is not the intention of the Legislature, otherwise there would have been no need of promulgating special laws and constituting special Tribunals like Labour Courts, Services Tribunals etc. The appellant, therefore, is a workman.

9. The remaining objections against the decision of the learned lower Court stand answered in this judgment. So far as the allegation made against the appellant is concerned, for which he was dismissed from service, stands proved. The plea that someone else made inter polations in his medical bill is not believable. The appellant did it and then actually cut the harvest withdrawing the amount of Rs.275 on the day on which it was credited to his account.

10. As a result, the appeal is accepted and setting aside the order of dismissal, the appellant is directed to be re-instated in service. He is not entitled to back benefits as he has succeeded only on technical point that is that the charge-sheet was given and dismissal order passed by incompetent authority.

A.E.

Appeal accepted.

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