MUHAMMAD SALIM Versus BANK OF CREDIT AND COMMERCE INTERNATIONAL (OVERSEAS) LTD., KARACHI

DECISION

The facts forming the background of this case, succinctly stated, are as under:

2. The appellant on 14‑11‑1983 was appointed as a "Trainee Officer" with the Bank of Credit and Commerce International (Overseas) Ltd., at Karachi. As per condition No. 4 of the letter offering appointment, his services were transferable at Bank's discretion to any branch, or office of the organisation any‑where in the world, or to an affiliate or subsidiary of the B.C.C. Group. Another condition was that his employment would be governed by the existing service rules and regulations of their organisation, or as amended from time to time.

3. On 22‑10‑1985, after his confirmation, he was selected for job‑training at B.C.C.I., S.A., Deira Dubai, where he was called on to report by 30‑10‑1985. Shorn of details, suffice to it to say that he worked in a number of countries in. that region, and on 30‑12‑1989 was in North Yemen when he made an application for leave to visit Karachi, to see his ailing father. The leave was granted to him and he was to resume duty on 18‑12‑1989.

4. However, there was a request for extension of leave as the appellant's father was critically ill. Leave was extended up to 20‑1‑1990 with a clear direction to report on that date. For reasons of the continued ill‑health of his father and also because of the difficulty in booking his flight, the appellant failed to report on 20‑1‑1990 and his services came to be terminated forthwith A telegram was despatched to his address at Karachi, and it is also alleged that it was backed up by a letter of even date, but this despatch of the letter is denied, by the appellant.

5. The appellant went on making representations to the authorities. He received a letter, dated 4‑6‑1990, which reads as follows:

"Dear Sir,

Termination of Employment Contract

Reference is made to our Telegram dated 20th January, 1990. We confirm to terminate the unspecified period of employment contract made between the two parties with effect from 20‑1‑1990.

You may report to your Personnel Department for settlement of your dues/liabilities and cancellation of Bank's sponsored employment visa.

Yours truly,

(Sd.) ABDUL SALAM.

6.After the receipt of this letter, on 25‑8‑1990 the appellant sent grievance notices to both the respondents and finding no satisfaction, filed the petition before the Labour Court. It was alleged therein that he was a workman and that the termination of his service was wholly illegal wherein he was not afforded any hearing. Written Replies were filed by both the respondents.

7. It was stated by the respondent No. 1 that the services of the petitioner had been terminated by B.C.C.I. SA, Hodeidah Branch (North Yemen) which was a separate and distinct legal entity from M/s. Bank of Credit and Commerce International (Overseas) Limited which was registered in Grand Cayman, Cayman Island, whereas M/s. B.C.C.I. SA, was registered in Luxembourg. It was further alleged that the petitioner was an Officer and not a workman and consequently the petition did not lie. Otherwise too it was barred by time.

8. The respondent No. 2 in the Written Reply stated that as the termination had taken place in North Yemen the petitioner could seek his redress, if any, there under the Law of North Yemen and not in Pakistan. It was also mentioned that there was a letter, dated 20‑1‑1990, informing the petitioner about the termination of his service, to back up the telegram of even date. It also referred to some `warning' administered to him during his posting, and also the termination earlier on 6‑7‑1989, while he was posted at Sur Branch in Oman. It added that on apology being tendered by the petitioner, and on the intercession of his sister the order of termination had been withdrawn and he was reappointed. It was alleged that the letter, dated 4‑6‑1990 was in reply to a letter of the petitioner merely confirming that his services had been terminated as conveyed to him by telegram and letter, dated the 20th of January.

9. The petitioner was his own witness. Waheed Usman Sakrani, Personnel Manager of BCCI (Overseas) Ltd., Karachi appeared on behalf of respondent No. 1 and Mehmood A. Qureshi, Manager (HRD) Bank of Credit & Commerce International SA., UAE., appeared on behalf of respondent No. 2.

10. The Labour Court found that the petitioner was a workman, and that he remained in the employment of the respondent No. 1 when his services came to be terminated on 20‑1‑1990. The Court, therefore, had no jurisdiction, so far as the respondent No. 2 was concerned. However, it was further found that the petitioner could obtain no remedy as against respondent No. 1 also, because the grievance petition filed by him, stood barred by time. This resulted in an appeal filed by the petitioner and cross‑objection on behalf of the respondents.

11. The appellant in his affidavit in evidence, as he had done earlier in the grievance notice, maintained that he was performing routine clerical work, and at no time was he vested with managerial and supervisory powers. Nor was there any person working under his subordination. He was not tested in cross -examination on that score. All that was asked from him was, whether he could substantiate all this by producing documents. No attempt had been made by the respondents to produce his job assignment though it was available as admitted by Mr. Mehmood A. Qureshi. The latter had also admitted the following:‑

"That he (sic) had no knowledge if the applicant had issued any charge‑sheet to any employee during his posting in UAE. I am not aware if applicant had served any show‑cause notice to any employee. I have no knowledge if any action was taken by the applicant against any employee. The applicant had no hire and fire powers:"

12. It is true that he had made some assessment about some members of the staff of non‑officers cadre but again Mr. Mehmood A. Qureshi had admitted `that it was confined only to his opinion but had lacked any recommendation'. While at Karachi also he was on training and had no regular job.

13. Designation or even attractive pay by themselves are not decisive factors, as held in a string of cases. What clinches the issue is to see as to what was the nature of duty an employee was performing. I am therefore clearly in agreement with the finding of the learned Presiding Officer that the petitioner was a workman.

14. When the services of the appellant were put at the disposal of the BCCI, SA., UAE., he had entered into a `Contract'. Clause I of the said Contract reads as under:

"The Second Party has agreed to work for the First Party as Loan Accountant in UAE in consideration of a basic salary amounting to Dhs 4,036 (Dirhams Four Thousand Thirty‑Six only).

Reference may also be made to clauses 5 and 7 thereof:

"(5) The First Party shall be entitled to sack the Second Party without notice in accordance with the provision laid down under Article 120 of Labour Law No. 8 for the year 1980 or under any of its clauses.

(7) As regards the service benefits, the same shall be allowed in accordance with the provision of Law No. 8 of the year 1980 regulating to organization of Labour relations. Likewise the said law will apply in matters not expressly mentioned in this contract."

15. It is also an admitted position that from the time the appellant had left the shores of Karachi in 1985, any leave that he had asked for, the salary he had been paid, the increments that he had earned, were all from respondent No. 2. There is not a single document on the record to show that he had any dealing with the respondent No. 1 thereafter, till this dispute arose. He had also been sacked though reinstated in Oman, and there were threats of removal elsewhere. The fact however remains that there is nothing on the record affirmatively, to show that his ties stood severed completely with respondent No. 1, or that he had no lien in that Bank.

16. The appellant appeared in person, and I have not received any assistance worth the name on this important issue. There is also paucity of material in that context. As in either view of the matter the appeal would fail, even against the respondent No. 1 on the ground of limitation, I would desist from examining this aspect altogether.

17. There is no denying the fact that the appellant had received the telegram regarding the termination of his service on 20‑1‑1990. On the basis of the principles laid down in Nusrat Ali v. Education Officer, Jhang and others 1992 PLC (C.S.) 75 he urged that as it offended against the maxim audi alteram partem the dismissal order communicated telegraphically had to be ruled out of consideration. Issues were joined, but certainly it could be no worse than verbal termination of services, gate stoppages etc. And in all cases under section 25‑A of the I.R.O. the count in regard to limitation commences from the date of the removal from employment. The appellant had parted company with his employees on the receipt of the telegram. His ouster was total. But even this stand, that the termination came through telegram is belied by the appellant himself. In respect of para. No. 2 of the Reply Statement of the respondent No. 1 he inter alia had the following to say in his affidavit‑in- evidence:

"I have to submit that my termination was effected vide letter dated 4‑6‑1990 and not letter dated 20‑1‑1990 ----------:'

18. Admittedly the grievance notice was issued on 25‑8‑1990 and that means a period of over seven months. According to section 25‑A of I.R.O., a workman has to bring his grievance to the notice of the employer within three months of the day on which the cause of such grievance arose. According to subsection (2) of section 25‑A, the employer has to communicate his decision in writing, to the worker within a period specified therein, and according to subsection (4) if the worker is dissatisfied with the said decision he may seek from the Labour Court, and this has to be, as per proviso to within a period of two months from the date of the communication of the employer etc. The total period works out to five and a half months and the grievance notice in the instant case was given after more than seven months.

19. The provisions of section 25‑A, I.R.O. are mandatory in nature and have to be strictly construed. As the appellant has failed to do so within the prescribed period and no attempt has been even made, to explain the delay, demonstrably the petition suffers from the bar of limitation.

20. In the result I will uphold the order of the Labour Court and dismiss the appeal.

H.B.T./2102/Lb.S Appeal dismissed.