DILSHAD KHAN LODHI vs ALLIED BANK OF PAKISTAN and others

' RANA BHAGWANDAS, J.--- This petition is directed against concurrent findings of fact arising out of grievance petition of the petitioner, an Officer Grade-II working in respondent-Bank, dismissing his petition as well as appeal against order of dismissal from the service.

2. Petitioner joined the respondent-Bank on 28-10-1977 as typist. He was promoted as Officer Grade-III on 1-1-1992 and rose to the office of officer Grade-II with effect from 1-1-1999. He was serving as Head of Foreign Exchange Department, Station Road Branch, Hyderabad when certain irregularities were detected to have been committed by him, therefore, he was issued a letter of explanation on 29-9-1999. Petitioner denied the allegations. His explanation did not find favour with the management and, as a result of domestic enquiry, he was dismissed from service vide order, dated 7-2-2000. After service of grievance notice on the employer; petitioner filed a grievance petition under section 25-A of Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) before the Sindh Labour Court, Hyderabad.

3. Grievance petition was contested by the respondent-Bank. It was the stance of the respondent- Bank that the petitioner, being an officer, could not invoke the jurisdiction of Labour Court, that he was holding a duly executed power of attorney and was Inter-Branch Authorisation Signatory, as such, he was not a workman. It was denied that the petitioner was doing any manual or clerical work, asserting that he was employed in a fiduciary and managerial capacity, therefore, his petition was not maintainable. On divergent pleadings, Labour Court struck as many as eight issues and, after recording evidence of the parties, concluded that the petitioner was not a workman and, therefore, Labour Court had no jurisdiction to entertain the grievance petition.

Judgment of the Labour Court was assailed before the High Court under section 48 of the Ordinance, which has been dismissed vide judgment dated 14-3-2005.

4. This petition was heard by another Bench of this Court and dismissed vide order, dated 26-9- 2005. The order of dismissal was recalled on 30-9-2005 by the same Bench while hearing another petition of an employee of same rank working in Allied Bank Limited. We have heard learned counsel for the parties at great length and gone through the relevant evidence on record. Learned Advocate Supreme Court for the petitioner while admitting that no doubt the petitioner was serving as Head of the Foreign Exchange Department in a Branch of the respondent-Bank, he had no power to hire and fire; that the petitioner, essentially did perform clerical and manual work along with other staff members and execution of power of attorney in his favour would not bring him within the purview of managerial or supervisory position. Conversely, Mr. Shahid Anwar Bajwa, learned Advocate Supreme Court for respondent-Bank contended that the petitioner was not only serving as Head of the Department as Grade-IF Officer, he had five other employees working under him doing clerical and manual work in the same department and that, apart from the petitioner holding a power of attorney from the respondent-Bank and Inter-Branch Authorisation signatory, held a fiduciary and supervisory position in the establishment of the Bank, therefore, he could, by no stretch of imagination be treated as "workman" as defined in section 2(h) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

5. With the assistance of the learned counsel for the parties, we have had the privilege of going through the pleadings of the parties, as well as oral evidence led by the parties in support of their respective versions. On a careful and conscious scanning of the record and appraisal of the evidence, we are firmly of the opinion that mere designation of a person, the amount of emoluments drawn by him or even holding a power of attorney by itself are not the sole criteria for determining his status. The fact remains that undoubtedly the petitioner in his capacity as Officer Grade-II has been heading a department of the respondent establishment independently and supervising the work of a least five persons. No doubt, he did not have the power of hire and fire, the nature of job as performed by him and evident from the record including the power of attorney executed in his favour tends to show that he was not primarily employed as a workman doing manual or clerical skilled or unskilled work. The nature and duties performed by him primarily and essentially appeared to be of managerial and supervisory nature, which clearly fall beyond the ambit and purview of the term "workman".

6. Lastly, learned counsel for the petitioner attempted to persuade us to disturb the finding of fact recorded by the Labour Court as well as the High Court on the premise that a domestic enquiry had been ordered against the petitioner, which could only be held against a workman. The argument, on the face of it, though appealing and having an element of attraction, does not clinch the issue in favour of the petitioner. Under the Internal Staff Service Regulations and in consonance with the principles of natural justice, an employer is under a legal duty to hold an enquiry against an incumbent officer proceeded on charge of misconduct in order to arrive at the truth of allegations and to afford an opportunity of reasonable defence to the officer concerned. Simply because an Enquiry Officer was appointed against The petitioner and report of the Enquiry Officer was taken into consideration before ordering his dismissal, does not ipso facto prove that he was treated as a workman for all intents and purposes.

7. In view of concurrent findings of fact, which do not appear to be perverse nor do the findings suffer from misreading or non-reading of record or omission to consider a material document having bearing on the facts of the case, we are constrained to dismiss this petition, as being without any merit and substance. It is ordered accordingly.