GENERAL MANAGER, MUSLIM COMMERCIAL BANK LTD., PESHAWAR CANTT. Versus MUSHTAQ AHMAD

This appeal under section 37 of the Industrial Relations Ordinance, 1969, has been moved to impeach the correctness of the order dated 14‑3‑1990 of the learned Presiding Officer, Labour Court, Peshawar whereby the dismissal order of the respondent was set aside and his reinstatement in service with back benefits was ordered.

2. The litigation before the Labour Court was necessitated when the respondent was removed from service by order dated 1‑6‑1986. The facts which can be gathered from the contents of the grievance petition under section 25‑A of the Industrial Relations Ordinance and the other materials on record are that the respondent was employed as Agriculture Credit Officer in the appellant‑Bank; that the respondent was dismissed from service on the basis of the charge‑sheet contained in Exh. P.W.1/2 dated 18‑9‑1984 and Exh. PW.1/5, dated 18‑3‑1985 and Exh. PW‑1/6, dated 6‑6‑1985. Exh. PW‑1/2 and Exh. PW‑1/5 refer to the same charge and the operative portion of which as contained in Exh. PW‑1/2 reads "It has been reported against you that during your tenure at B/O Swabi (Mardan Region) as Agriculture Credit Officer you had availed agriculture loan up to the tune of Rs.102,000 in the names of farmers and had misused the amount". Exh. PW‑1/6 is regarding misappropriation of Rs.30,000 on the same count. The reply of the respondent having been found unsatisfactory a domestic enquiry was conducted into these allegations. The enquiry officer held the respondent guilty of the charges and recommended his dismissal from service. The competent authority accordingly dismissed him from 'service by order dated 1‑6‑1986. The dismissal order was challenged by the respondent by serving the grievance notice on the appellants (Exh. PW‑1/10) which was, however, not accepted. Hence the present grievance petition was filed before the Labour Court.

3. At the trial before the Labour Court respondent appeared as PW‑1 and supported his stand as reflected in the grievance petition. He also examined PW‑2 Fateh Khan who had applied for loan for agriculture purposes. This witness in his statement exonerated the respondent of the charge and instead held one Anwar responsible for the fraud. Similarly Awal Sher and Badshah Gul PW‑3 and PW‑4 who had also applied for loan absolved the petitioner of the commission of any fraud in the matter. On the other hand Hidayatullah Agriculture Officer RW‑1 justified the correctness of the charge- sheet and the enquiry report and supported the version of the appellant. RW‑2 Shafique Ahmed who had conducted the enquiry and he brought on record some of the documents relevant to the case.

4. The learned counsel arguing for the appellants submitted that the respondent was not a workman as by designation he is Agriculture Credit Officer. It was also urged that by nature of his duties he cannot be classified as workman under the provisions of the Standing Orders Ordinance as he was performing the duties of supervisory nature. This argument is without substance. The respondent appearing as PW‑1 while enumerating his duties stated "as an Agriculture Credit Officer my duty was to verify the antecedents of the applicants for loans by visiting their abodes in village for physical verification and also to verify the particulars of the guarantors of those seeking loans from the bank as Farmers. After due verification I used to submit my report in each case to the bank authority who would then decide to advance or not to advance the loans." The following portion from his cross‑examination is also relevant in this context.

"The loan was to be recommended by me after scrutiny of the applications and the documents of the borrowers and thereafter the loan was to be advanced by the concerned Branch."

As against this nothing was stated by any of the witnesses of the appellants to disprove the above nature of the duties of the respondent. It is by now well‑settled that in order to classify an employee as a workman the decisive factor would be the nature of his duties and not the designation which he carries. In this case the duty of the respondent was basically of clerical nature as he had to give the particulars of the applicant and then forward the case to the bank authorities and thereafter it was for the latter either to sanction or refuse the loan. The nature of the duty of the respondent was in no way managerial or executive. The Presiding Officer, Labour Court has correctly appreciated the evidence on record in this context and rightly held the respondent to be a workman. It was next submitted that the Standing Orders Ordinance would not apply because of the provisions of section 38(a) to 38(i) of the IRO. This argument is also devoid of force as it cannot be denied that the appellants had not statutory rules to govern the case of the respondent. The rules which have been framed on the recommendation of the Wage Commission Award cannot be designated as Statutory Rules so as to exclude the application of the Standing Orders Ordinance. Moreover, this argument can also be repelled on the simple ground that it was not agitated at any stage in the proceedings before the Labour Court. Decision on the question of limitation regarding issuance of charge‑sheet was next attacked as according to the learned counsel in view of the applicability of section 38(a) to section 38(i) of the Industrial Relations Ordinance the period of limitation as laid down in the Standing Orders Ordinance would not apply. This argument has been answered while replying the arguments regarding the non‑applicability of the Standing Orders Ordinance above and there is no need to repeat it. The factual aspect of the finding of the Labour Court in respect of limitation was not agitated. No argument was addressed on the other findings given by the learned Labour Court in the impugned order.

5. I, therefore, find no merit in this appeal which is accordingly dismissed with no order as to costs. C.M. is also disposed of.

H.B.T./151/Lb.N Appeal dismissed.