NATIONAL BANK OF PAKISTAN Versus PUNJAB LABOUR COURT NO. 5, FAISALABAD

Safdar Ali Khan respondent No.2 (hereinafter referred to as the respondent) was employed as Officer Grade II in the National Bank of Pakistan. He was served with a charge‑sheet dated March 27, 1979, while posted as Officer Grade II/Accountant, National Bank of Pakistan, Mianwali Branch. There were accusations of criminal breach of trust, frauds and forgeries, wrongful concealment of the receipt and unauthorised custody of the Bank cash, conversion, misconduct and sheer violation and breach of the Bank rules and procedure. He submitted reply to the charge‑sheet denying all the charges. A domestic enquiry followed and the Inquiry Officer found him guilty on the charge of misconduct vide report Annex. `D'. The respondent was dismissed from service on 15‑4‑1981. He filed a grievance petition on 10‑11‑1982, before the Punjab Labour Court. No.5, Faisalabad. The grievance petition was, of course, resisted by the petitioner‑bank, the employer. The learned Labour Court after recording the parties' evidence and after hearing them accepted the grievance petition of the respondent on 25‑2‑1984 and ordered his reinstatement with back benefits.

The petitioner‑bank without availing the right of appeal before the learned Labour Appellate Tribunal assailed the aforementioned order of the learned Labour Court re‑instating the respondent into service with back benefits through the present constitutional petition. It was maintained that an appeal before the learned Labour Appellate Tribunal was not an efficacious remedy and that the said learned Tribunal has already expressed a contrary view on the legal questions involved in the case.

2. In the present writ petition it was mainly urged that terms and conditions of service of employees of the Nationalized Banks and other financial institutions were governed by the award of the Wage Commission, which could only be enforced by the National Industrial Relations Commission, while the Labour Courts lacked jurisdiction in the matter. It was also urged that being a dismissed employee the respondent could not be treated as workman having a locus stand] to file an application under section 25‑A of the Industrial Relations Ordinance 1969 (hereinafter referred to as the Ordinance) and that being an Officer Grade Il and a Manager, he (the respondent) could lawfully be treated as an employer and not a workman. It was also canvassed that the respondent after his dismissal did not avail the remedy of departmental appeal available to him and, therefore, he could not lawfully file an application under section 25‑A of the Ordinance before the learned Labour Court.

A learned Division Bench of this Court, who was seized of many writ petitions challenging the orders passed by the Labour Courts and the learned Labour Appellate Tribunal, whereby the employees of nationalized banks were re‑instated into service came to the conclusion that terms and conditions of service including disciplinary action of the employees of the nationalized banks and other financial institutions were governed by the award of Wage Commission, which was to be treated as an `award' of the National Industrial Relations Commission and thus the same could be enforced by the said Commission. Such an award did not fall within the ambit of the definition of term `award' as occurring in section 2(ii) of the Ordinance. It was further held that the Labour Courts and the learned Labour Appellate Tribunal were not possessed of jurisdiction in the matter. The writ petitions, including the present one, were thus allowed, vide orders dated 10‑4‑1985, passed in Writ Petition No. 719 of 198‑', with no order as to costs.

3. The employees including the respondent, preferred appeals before the august Supreme Court of Pakistan and the learned Supreme Court accepted the appeals, set aside the judgments passed by the High Court and remanded the cases to this Court for deciding other issues involved in the cases. It has been held by the learned Supreme Court that the award of Wage Commission although not covered by the expression `award' contained in section 2(ii) of the Ordinance, bus nevertheless for the purpose of section 25‑A of the Ordinance, which envisage any award' the award by the Wage Commission can be enforced through the Labour Courts. The Supreme Court's judgment is reported as Iftikhar Ahmad and other v. President, National Bank of Pakistan and others (P L D 2988 S C,' 53).

4. The other issues which are required to be decided by this Court are:‑‑

(a) that being dismissed employee, the respondent is not a workman having locus standi to file application under section 25‑A of the Ordinance;

(b) that being a manager and Grade II Officer, the respondent cannot lawfully be treated as a workman. He was an employer for all intents and purposes and, therefore, could not competently file a grievance petition before the Labour Court; and

(c) that the respondent did not avail of the right of departmental appeal and, therefore, could not directly file grievance petition before the Labour Court.

5. Regarding the first issue that being a dismissed employee the respondent has no lactic stand to seek relief under section 25‑A of there Ordinance, it may be observed that the expression `worker' and workman contained in clause (xxviii) of section 2 of the Ordinance, primarily deals with the worker actually in service, but it also provides that in relation to an industrial dispute, a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute, shall be included in the definition in clause (xiii) of section 2 of the Ordinance. This definition covers a dispute or difference between the employer and the workman concerning the employment or non‑employment or the terms of employment or the conditions of work of any person. Again subsection (4) of section 25‑A, specifically provides that when an individual grievance is sought to be redressed by a workman under section 25‑A, the same shall be decided by the Labour Court as if such matter were an industrial dispute.

The analysis of the aforementioned provisions of the Ordinance, thus leads to the conclusion that a dismissed or terminated workman has to be treated as workman for the purpose of section 25‑A, of the Ordinance and has thus locus stand] to seek redress under this section. It has also been noted that the Supreme Court of Pakistan has already found that right to approach to the Labour Court was available to dismissed employees of the banks under the Ordinance itself. The said learned Court, therefore, observed that it was unnecessary to examine further question whether such dismissed employees could also invoke to A jurisdiction of Labour Courts under section 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is noteworthy that the learned counsel for the petitioner‑bank while arguing that the dismissed employees had no locus stand] to file grievance petition under section 25‑A of the Ordinance, placed reliance on two judgments reported as 1985 P L C 1053 and 1987 P L C 180. As a matter of fact, both these judgments have been dissented from by the Supreme Court while deciding the appeals. Reference may be invited to P L D 1988 S C 53. '

6. About the second issue that the respondent was an employer and not a workman being Grade II Officer and Manager, it has been noticed that at the time of service of charge‑sheet (Annex. `A') in March 1979, the respondent was posted as Officer Grade II/Accountant, National Bank of Pakistan, Mianwali Branch. An Accountant admittedly performs duties of clerical nature with his own hand. Even at the time of his dismissal from service, the respondent was B serving as an Accountant. The mere fact that he was Grade II Officer would not take him out of the category of workmen. While performing duties as an Accountant he cannot by any stretch of imagination be treated as an employer. In Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 S C M R 304), it was held that an Accountant performing clerical duties and having no supervisory functions to perform was a workman and not an employer.

7. So far as the third issue which is based on half‑hearted plea that the respondent did not avail of the right of departmental appeal and, therefore, could not competently file a grievance petition is concerned, it may be observed that such a plea has been erroneously raised. As a matter of fact, the respondent filed C a departmental appeal before the President National Bank of Pakistan, Head Office Karachi (Annex. R/A to the written statement). This appeal was rejected by the Executive Board in their meeting held on 27th June, 1982 and the decision was conveyed to the respondent vide memo dated 8‑8‑1982 (Annex. `R/B' to the written statement). The learned counsel for the petitioner‑bank has tried to canvass that this was not a regular appeal but a mercy appeal. The contents of Annex. `R/A' suggest that through this departmental appeal the respond (It challenged his dismissal on merits of the case and did not plead for mercy along

8. No other point has been urged on behalf of the petitioner‑bank.

9. In the light of the above discussion, it is concluded that there is no merit in the present writ petition, which is, therefore, dismissed. There shall, however, be no order as to costs.

S.O./N‑143/L

Petition dismissed.