Find a Lawyer

Appeals Nos, FD‑711 and 712 of 1982, decided on 18th January, 1984.

‑‑ Misconduct‑Bank employee‑Appointed by competent authority as typist after passing test of required standard in type speed Mention of wrong type speed in application for appointment and failure to participate in any subsequent test, in circumstances, held, does not amount to misconduct.

‑‑ Ss. 25‑A & 38‑E‑‑Wage Commission Award‑Infringement of Relief can be sought before Labour Court‑[1982 P L C dissented from].

1982 P L C 1 dissented from.

Munawar Ahmad Javed for Appellant.

A. R. Sheikh for Respondent.

Date of hearing : 15th January, 1984.

The two appeals captioned above having same facts and law points are being decided together through this single judgment.

2. The appellants were typists appointed on 10th June, 1% 0. They had completed the probationary period of six months long before they were dismissed from service on 17th January, 1982 vide separate orders exhibited in their respective grievance petitions as Exh. P. 7. Charge -sheets Exh. P. 2 were delivered on 16th September, 1981 to which replies Exh. P. 3. were submitted by them. The allegations against them were that they at the time of their appointment gave false and incorrect particulars regarding typing speed and that they did not appear in the typing test held on 9th July, 1981. The grievance petitions of the appellants have been dismissed holding that the misconduct had been proved and that the enquiry was properly held. The learned lower Court, however, did not record any finding on the objection of the appellants that they had been dismissed by an incompetent authority.

3. It has been argued by the learned counsel for the appellants that according to para. 258 (8) of first Wage Commission Award of 1975. Circle Executive of Senior Vice‑President (Admn.) Division, Head Office was competent to dismiss Grade‑II employees but the dismissal orders were passed by the Vice‑President of Zonal Office, Faisalabad. This is true but power‑of‑attorney Exh. P. 1 shows that the Bank had authorised the authority, who dismissed the appellants, to dismiss Grade‑11 Officers, so this is incorrect that the authority that passed the dismissal orders was incompetent.

4. The other point argued is that since the appellants had been appointed after a typing test was taken and speed was found 45 words per minute, no further test could be taken and thus the appellants did not commit any misconduct by failing to sit in the said test. To meet this argument the learned counsel for the respondent has argued that the Senior Vice‑President, Zonal Office, Faisalabad was not competent to appoint the appellants and that he had favoured the appellants by giving a wrong result, therefore, the respondent was justified in holding new test. This argument is not tenable. Clause (i) of Power‑of‑Attorney Exh. P. 1 authorises the said authority to appoint and dismiss officers of Category 11. P. W. 2 had appointed the appellants and he said that the appellants had typing speed of 45 words per minute. He also said that he had held the tests correctly. Since the appellants had been appointed by a competent authority after a valid test, it was quite unnecessary to hold the test again long after the appellants had completed the probationary period.

5. The learned lower Court has missed to consider that the allega tions do not constitute misconduct. In the applications the typing speed was given as 45 words per minute and in the tests they typed at that speed. Even if in an application the typing speed is given which is the required speed, it does not amount to misconduct. Always appointments are made after taking test and satisfying that the candidate is upto the mark and competent for the job. So by giving wrong speed, the candidate cannot be said to have practised fraud. Failing to sit in the test too does not amount to misconduct. If a legal test is held, the candidate who has failed to participate, it may be ignored, but he cannot be dismissed from service on the ground that he committed misconduct.

6. It has been argued that the Labour Courts are not competent to grant relief for the infringement of the Wage Commission Award and that only N. I. R. C. is competent. Reliance has been placed upon 1982 P L C 1. No doubt, it has been held so in the authority cited by the learned counsel. I have in number of cases held after due consideration of the point that the N. 1. R. C. has jurisdiction only in matters of unfair labour practices. Powers and functions of the N. I. R. C. are given in sections 22‑A, 22‑B and 22‑C of the Industrial Relations Ordinance, 1968 only in relation to unfair labour practices. Power has been given to the N. I. R. C. to adjudicate upon such disputes as one in hand. Section 38‑E gives powers to the N. I. R. C. on the criminal side only. So I hold that only the Labour Courts have jurisdiction.

7. It has also been argued that the Award of the Wage Commission) is not that Award as defined in the Industrial Relations Ordinance, 1969.1 Quite so and that‑is‑why it has been provided in section 38‑D that it would be deemed to be an award of the Commission. But in the same section 38‑DI provisions of the Industrial Relations Ordinance, 1969 including sections 511 and 55 have been made applicable. The result is that criminal cases for the violation of the award of the Commission can be heard by the Commission and other matters arising from the non‑compliance of the Award of the Commission are to be adjudicated upon by the Labour Courts under, section 25‑A read with section‑D.

8. As a result, I accept the appeals and setting aside the impugned decisions of the learned lower Court, direct the re‑instatement of the appel lants in service with full back benefits.

A. E.

Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.