Find a Lawyer

Constitutional Petition No. D‑2 of 1986, decided on 2nd September, 1986.

‑‑‑S.25‑A‑‑Constitution of Pakistan (1973), Art 199‑‑Constitutional jurisdiction, exercise of‑‑Requirements‑‑Constitutional jurisdiction of High Court being an equitable jurisdiction, High Court would not quash an order even if it was legally somewhat doubtful, provided same was in accord with equities of the case‑‑Constitutional jurisdiction could be invoked only in aid of justice and not to perpetuate injustice.

1980 P L C 368; 1983 P L C 468 and 1982 C L C 683 ref.

Muhammad Iqbal v. Chief Settlement Commissioner P L D 1965 S C 404 and Wall Muhammad v. Sakhi Muhammad P L D 1974 S C 106 rel.

Ahmed Awan for Petitioner.

Abdul Hamid Khan for Respondent No.l.

Date of hearing: 2nd September, 1986.

‑‑This Constitution Petition is directed against the order of Sind Labour Appellate Tribunal dated 21‑8‑1986, whereby the order of the Chairman Labour Court was set aside and the dismissal of the respondent by the petitioner Bank was declared illegal.

2. The facts giving rise to this petition are that the appellant was appointed as a messenger in Muslim Commercial Bank Limited on 10‑2‑1976. He was charge‑sheeted on 13‑9‑1981. The allegations were that the appellant had obtained a house building loan but had not utilized it for purchasing the plot or raising construction thereon and had not executed mortgage‑deed in favour of the Bank. He had thus fraudulently obtained an amount of Rs. 31,000 from the Bank by misrepresentation. The appellant in his reply to the charge‑sheet admitted that a house building loan was sanctioned to him to the extent of Rs. 40,000 on 8‑2‑1981. He entered into an agreement with one Mst. Hidayat Afroze for purchase of a plot for Rs. 8,000 and paid Rs. 2,000 to her from his own pocket and obtained the possession of the plot. The balance of Rs. 6,000 was paid by the Bank to the said vendor directly out of an amount of Rs. 20,000 which was released to the appellant by the Bank without request from him. The balance of Rs. 12,000 was also not paid to the respondent but was credited into his account in the said Bank. Mst. Afroze being a relative picked up a domestic quarrel with the appellant and refused to execute the sale‑deed in favour of the appellant. Hence, a Civil suit was filed by him, which has now been compromised and the vendor has executed registered sale‑deed in his favour. He admits that outstanding amount of Rs. 30,000 is to be paid by him but he denies the allegations of misrepresentation and fraud made against him. He further states that earlier a petition was filed by him in Labour Court complaining against the non‑payment of wages of over‑time. This petition had annoyed the high ups of the Bank. Hence they became vindictive and launched this inquiry against him without any justification, and dismissed him. Consequently, he filed an application before the Labour Court.

3. The reply of the Bank was that the appellant had not raised any protest before the Enquiry Officer and had left the enquiry without leading any evidence. Material evidence had been brought by the Bank on record and thus the enquiry was rightly decided against the respondent who was dismissed from the service on the above charge. The Bank has also raised a legal plea that the Labour Courts had no jurisdiction in this matter as Wage Commission Award regulates the terms and conditions of the service of the employees of the petitioner Bank.

4. The Labour Court framed three Issues which were as under:

(i) Whether the provisions of Standing Orders Ordinance are not applicable in case of the applicant

(ii) Whether the notice of the alleged misconduct has been given by the respondent to the applicant within time as required by law

(iii) Whether the applicant has been illegally dismissed from service

5. The Labour Court came to conclusion that it had jurisdiction to hear the application. On the second point it held that the charge‑sheet was within time. On third issue it came to the conclusion that the applicant was not illegally dismissed from service.

Consequently, the Labour Court dismissed his application.

6. Appeal was filed against this order of Labour Court before Sind Labour Appellate Tribunal. The same was heard and decided by Mr. Justice (Retd.) Ali Nawaz Budhani. The Appellate Tribunal agreed with the finding of the Labour Court with regards to its jurisdiction. It, however, did not agree with the findings on the next two issues, and came to the conclusion that the charge‑sheet was time‑barred and that the enquiry was not just and fair and that the dismissal of the Respondent was illegal.

7. It is against this order of the learned Appellate Tribunal that the petitioner Bank has come to this Court in its constitutional jurisdiction. The main contention of the petitioner Bank is that it is run by under the authority of the Federal Government and has its own statutory rules of services and that the Standing Orders Ordinance is not applicable to such a nationalized Bank. It was further contended that employees of a nationalized Bank cannot approach the Labour Court which had no jurisdiction in respect of their grievances. Reference in this connection was made to Section 1 of Standing Orders Ordinance as well as to the Banks Nationalization Ordinance 1974. Reference was also made to para. 258 of Wages Commission Award which framed disciplinary rules and it was contended on the authority of these rules that the charge was not time‑barred.

8. These arguments were also submitted before the Labour Court as well as the Appellate Tribunal. The learned Appellate Tribunal while rejecting this contention stated as under:

"In respect of the first issue that Standing Orders Ordinance is not applicable by virtue of its Section 1, Subsection (4). The Section 1, subsection (4) provides that where there are Statutory rules in conducting an enquiry or taking disciplinary action, the Standing Orders Ordinance would not apply. The point is that the Wages Commission award is only an Award and the Rules framed under such an Award are not statutory rules. In this respect, an authority exist, namely, 1980 PLC at p. 368. The relevant arguments as advanced by Mr. Justice (Retd.) Z.A. Channa in this judgment are as follows:

"No doubt, section 38‑C provides that the decision of the Wage Commission is to be binding on all employees concerned with the decision in relation to their workers and every such worker is to be entitled to be paid the Wages and governed by the terms and conditions determined by the Wages Commission but there is no provision to the effect that the protection afforded to workers under any law will be eroded or eliminated by reasons of Industrial Relations Ordinance which is a beneficial piece of legislation made in the interest of workers and unless a specific provision is made curtailing the right or the remedy available to a worker under the said Ordinance, it would not be correct, in my opinion to construe the provisions is the Ordinance relating to the Wages Commission as doing away with the rights of and the reliefs available to the workers under other laws or under provisions of I.R.O. even if it were assumed for arguments sake that of a worker to approach the Labour Court under section 25‑A, I.R.O. for enforcement of a right guranteed to him under the award of the Wage Commission itself cannot be denied."

Reference may be had to the authorities reported in 1983 PLC at p. 468 and 1982 C L C at p. 683. These authorities categorically establish that the Wage Commission awards and the Rules framed under such Awards are not statutory rules. Therefore, this issue is rightly answered by the learned Labour Court. The Standing Orders Ordinance of 1968 does apply in this case."

We do not propose to comment on the legal proposition state in its judgment by the Appellate Tribunal and, therefore, we have deliberately desisted from expressing our view one way or other in this behalf. We are of the considered view that for the decision of this case, it is not necessary for us to go into this legal aspect. We would only like to point out that writ jurisdiction of this Court is an equitable jurisdiction. An impugned order even if it is legally some‑what doubtful, then also the High Court is not bound to quash) it, if it is in accord with the equities of the case. In Muhammad' Iqbal v. Chief Settlement Commissioner reported in P L D 1965 S C 404 it was held as under:‑

"That reasons given by the learned Member, Board of Revenue, in support of his order in revision, appear to fall fully within this extract from the Standing Order. If the arguments raised that the appellants' personal status, should have been distinguished from that of their father who was acting as their next friend during their minority, be given effect to, it would virtually mean that their Pir Sahib, their father, could get lands in the names of his minor sons, where as he would not have been entitled to do so, in competition with a hari such as the respondent was, in view of his affluent own condition. The impugned order, therefore, appears to us to be in accord wit the equities of the case and no ground has been made out which would justify interference, by this Court." Underlined are mine).

9. It must be remembered that the writ jurisdiction of the High Court is an equitable jurisdiction. It can be invoked only in aid of justice and not to perpetuate injustice. Reference in this connection may be made to the case of Wali Muhammad v. Sakhi Muhammad reported in P L D 1974 S C 106 where it was held that the grant of relief in writs was entirely discretionary, the High Court would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case even if because of any technical reasons the order of the Tribunal below was not strictly proved justifiable. It is well‑settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill‑gotten gains.

10. In this connection, it may be pointed out that the respondent is a poor messenger in the employment of the petitioner Bank. It would be most unfair to deprive him of his service simply because he obtained a loan from his master and could not invest it strictly according to the rules. In this connection, it will be useful to reproduce relevant remarks made by the Appellate Tribunal which are as follows:‑

"That the misconduct is with regard to the advance of house building loan. The house building loan was granted by the Bank and further action was taken by the Bank in respect of delivery of amounts. Now, it is to be seen that whether fraud of the appellant is involved in seeking for the loan of house building. The appellant states that plot was purchased from one: Mst. Afroze his relative under an agreement. Due to domestic dispute hat Afroze did not give possession of the plot to the appellant although Rs. 8,000 were given to Mst. Afroze. When Mst. Afroze did not deliver the possession of the plot he went into Civil litigation and the evidence of Civil litigation is produced in the record of the present case. This evidence is sufficient as regard the bona fides of the appellant and they need not be capitalized as misrepresentation or dishonesty on the part of the appellant. The appellant admits that the loan of Rs. 31,000 was advanced to him and the recovery of this amount could be done by the Bank in the normal course of its procedure either by attaching property or filing a case in a Civil Court or deducting certain amount from his pay. This was the normal way the Bank should have or ought to have taken. There could not be a disciplinary action against its employee in respect of the loan advanced to him. As regards the certain applications given by the appellant which are calculated to be fraud by the Enquiry Officer are answered him in the explanation that he gave to the charge‑sheet. It is stated by the appellant in his explanation that he is semi‑literate and certain applications have been written that the work of construction is going on and on this plea certain amount was taken by him from the Bank. But, he said that he did not know as ‑to what was written in that application. This at most could be a misstatement as a result of his being semi‑illiterate. Actually para. 11 of his explanation takes the lid‑off and it appears that his previous grievance petition for overtime wages was the cause or the motive for the domestic enquiry had his subsequent dismissal. The Circle Officer at Hyderabad has considered his previous grievance petition which was pending before the Labour Court and due to this and due to the grudge the domestic enquiry was initiated against the appellant. The domestic enquiry being badly time‑barred resulted in his dismissal. I have considered the pros and cons of this enquiry and have come to the conclusion that the enquiry was badly time‑barred and it reflects the previous annoyance of the Circle Officer. Getting a loan from the Bank is not an offence and the amount is admitted by the appellant which could be recovered by other legal means which are available to the Bank. But this enquiry of fraud initiated against the appellant is not just and is singularly unfair "

11. We are, therefore, of the view that by granting any relief to the petitioner this Court would not be acting in aid of justice, but would on the contrary be perpetuating an injustice. Hence, this is not a fit case for issuance of a writ. These are the reasons for which we had dismissed the writ petition by short order dated 2‑9‑1986.

A. A. / M‑160/ X

Petition dismissed.

Find a Lawyer Near You

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