GHULAM MUHAMMAD Versus MUSLIM COMMERCIAL BANK LTD.
ORDER
1. The applicant was appointed as Cashier and, thereafter he was promoted as Grade‑III Officer with effect from 1‑1‑1978. He was posted as Manager of Gujjo Branch in 1981 where he was said to be performing clerical and manual duties and in view of the nature of his duties he claimed to be covered by the provisions of Standing Orders Ordinance. By letter dated 13‑10‑1981 he was suspended on the allegations of misappropriation and then an enquiry was conducted on 26‑11‑1981. He was finally dismissed from service by letter dated 20‑2‑1982.
2. It appears that while he was still in service he was also prosecuted before the Special Judge in regard to the same misappropriation and wherefrom he was acquitted on 31‑12‑1984. He then submitted departmental appeal on 9‑1‑1985 and on 31‑3‑1985 and on the rejection of the appeal by letter dated 1‑1‑1986, he sent grievance notice dated 28‑1‑1988 and then instituted the present petition on 25‑2‑1986 for his re‑instatement with back benefits.
3. The respondent in its reply statement, disputed the applicability of Labour Laws and maintainability of the present petition. It also pleaded that this petition is time‑barred. It has also been averred that the applicant having misappropriated the Bank amount, was rightly dismissed after complying with necessary formalities.
4. In support of his case, the applicant examined himself, while M/s Chaudhry Mohd Iqbal and Syed Mahmood Shah, were tendered in evidence on behalf of the respondent.
5. I have heard Mr. Salahuddin Ahmed, Advocate for the applicant, and Mr. M. Bashir Awan, Counsel for the respondent. I have also considered the material on record.
6. The first point which has been urged on behalf of the respondent is that the applicant is not a workman and so he cannot maintain this petition. According to Mr. Bashir the applicant was not only posted as Manager of the branch but he was also holder of the Power of Attorney and was performing supervisory duties. Mr. Salahuddin, on the other hand, submitted that the applicant was performing clerical and manual duties and so mere designation as Manager would not oust him from the category of workman because the test to determine the status of an employee is the duties being performed and not the designation itself. He has placed reliance on 1984 P L C 493 as also P L D 1986 SC 103.
7. It is an admitted fact that the applicant was lastly posted as Manager of the branch of the respondent bank. According to the applicant himself, he was holding Power of Attorney and was drawing salary as an Officer. Two persons were also posted in his branch. In 1985 S C M R 1511, it has been held that if a bank employee is the holder of Power of Attorney, he would be excluded from category of workman. In the instant case, the applicant himself admitted that he was holding Power of Attorney as Manager and so it is evident that he was performing his duties under the said Power of Attorney. If at all he happened to perform any clerical work while he was posted as Manager, such would be considered merely incidental to the main duties of Manager and the same were not his substantial duties. In the Supreme Court case as well, which has been referred to by Mr. Salahuddin though the Shift Engineer in that case was also doing some manual work but still he was held to be not a workman observing that. "there can, therefore, be no doubt that the main and substantial part of his duties were those of a skilled Engineer, to be performed by application of his expert technical knowledge of the working of sophisticated machinery. Such work can hardly be called manual labour."
8. Applying this test with reference to the evidence on record in the instant case there is no difficulty in holding that the applicant cannot claim himself to be a workman and so he cannot maintain this petition.
9. Assuming that the applicant was a workman, the alternate submission of Mr. Bashir is that this petition is liable to be dismissed on the ground of limitation. Admittedly the applicant was dismissed by letter dated 20‑2‑1982. He served the grievance notice on 28‑1‑1986. 1 The submission of Mr. Salahuddin that the applicant first waited fort the decision in the criminal case and then he waited for the result of l his departmental appeal is also of no help to the applicant. If the applicant was facing trial in a criminal case, there was no legal requirement to wait for the result of the same. Assuming that he could not serve the grievance notice till his acquittal, still his grievance notice is time‑barred. He was acquitted by Judgment dated 31‑12‑1984 but he sent the departmental appeal on 31‑3‑1985. The departmental appeal can be preferred only within 30 days and if the cause had accrued to the applicant on 31‑12‑1984 he should not have waited for nearly 3 months. The so‑called appeal dated 9‑1‑1985 is in fact no appeal because it was preferred to the Regional Manager and who was not competent to hear any appeal. Accordingly, the time spent on the plea of departmental appeal cannot be excluded to enlarge the time of limitation. Reliance can be placed on 1982 P L C 1007. In this view of the matter, the grievance notice was hopelessly time‑barred and so this petition is not maintainable on this score alone.
10. Even on merits the applicant has no case inasmuch as he has specifically admitted the receipt of Rs.10,000 and that he did not account for the same till such time it was detected by the audit. Enquiry was properly conducted against him and he had fully Participated therein. He did not show any grievance against the Enquiry Officer nor he pleaded that he was deprived of the chance of self -defence.
11. In view of the above, I do not find any substance in this petition which is accordingly dismissed.
12. A.A./923/Lb. S
13. Application dismissed.