HABIB BANK LIMITED, KARACHI Versus SINDH LABOUR APPELLATE TRIBUNAL

1. MUKHTAR AHMED JUNEJO, J .‑‑‑Petitioner M/s. Habib Bank Limited has invoked Constitutional jurisdiction of this Court to challenge the decision given by Sindh Labour Appellate Tribunal (hereinafter to be mentioned as the Tribunal) in Appeal No. SUK‑64/83, on 15‑1‑1987.

2. Admittedly respondent No. 2 Mumtaz Ali Surio joined petitioner Bank as Cashier on 13‑4‑1970 at Moro. On 1‑4‑1979 respondent No. 2 was promoted as Second Officer and was posted in petitioner's branch at New Jatoi, Nawabshah. During the course of his service, the respondent was served with a show‑cause notice dated 6‑4‑1981, containing certain allegations against him, which amounted to temporary embezzlement of bank money and retention of money unauthorisedly in his possession, in Darbalo Branch of petitioner Bank. He was also alleged to have allowed TODs to one Sher Ali without approval of the Superior Authorities. Respondent No. 2 replied the show‑cause notice on 12‑4‑1981. Under a letter dated 12‑4‑1981, the petitioner Bank appointed S. Haider Naqvi, Officer Zonal Office as the Enquiry Officer and directed the respondent No. 2 to face the Enquiry. After holding of the domestic enquiry, the Enquiry Officer submitted report, on the basis of which the authorities of petitioner‑Bank came to the conclusion that the evidence recorded during the enquiry had proved that the respondent No.2 was guilty of temporary embezzlement of Rs.35,000 and Rs.2,000 respectively. Such second show‑cause notice was issued to the respondent No.‑2 on 31‑5‑1981 and he replied the same on 28‑6‑1981. Ultimately under a letter dated 20‑2‑1982, the respondent No. 2 was informed that management of the petitioner‑Bank had decided to terminate his service with immediate effect.

3. Respondent No. 2 submitted his appeal to the President of petitioner Bank on 18‑4‑1982. Ultimately he filed grievance Application No. 63/82 in the Labour Court at Sukkur.

4. The grievance application was contested by the petitioner, who challenged maintainability of the grievance application and jurisdiction of the Labour Court at Sukkur and contended that at the relevant time respondent No. 2 was not a worker or workman and was not entitled to file grievance application under section 25‑A of IRO because' of his posting as Manager at Darbelo Branch of petitioner‑Bank. It was also averred on behalf of the petitioner in the Labour Court, that respondent No. 2 had not secured or guaranteed right for the infringement of which he could move the Labour Court and his grievance application was also time barred.

5. The Labour Court recorded evidence on all aspects of the case and then under an order dated 5‑2‑1983 dismissed the grievance application on the grounds, that the grievance notice given by respondent No. 2 under section 25‑A of the IRO to the President petitioner Bank was not proper, and secondly that respondent No. 2 was not a "Workman" in view of the definitions provided under the IRO and under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter to be mentioned as the Standing Orders Ordinance).

6. Respondent No. 2 filed Appeal No. SUK‑64/83 against the order of the Labour Court, before the Tribunal. Under the impugned decision dated 15‑1‑1987 learned Tribunal set aside order of the Labour Court, allowed the appeal and directed reinstatement of the respondent No. 2 in service of the petitioner with full back benefits. While giving such decision, learned Tribunal took view that respondent No. 2 had correctly served his grievance notice upon President of the petitioner‑Bank in the form of departmental appeal‑cum -grievance notice and within the prescribed period. Learned Tribunal also took view that respondent No. 2 was not an employer or manager but he was actually a workman within the meaning of Standing Orders Ordinance, IRO and the Wage Commission Award and was fully entitled to maintain his grievance application under section 25‑A of IRO. After resolving these legal issues, the Tribunal proceeded to consider the case on merits although the Labour Court had not given any finding on factual aspect of the case. Hence this Constitution petition

7. Mr. A.R. Akhtar, learned counsel for the petitioner argued that respondent No. 2 was acting as an officer of the petitioner‑Bank and a power of attorney Exh.4‑A was executed in his favour and it indicated the duties performable by him and that all this would show that respondent No. 2 was not a "workman" under the Standing Orders Ordinance. It was added that even the show‑cause notice was addressed to respondent No. 2 as Manager, which position was not denied by him. In this respect reference was made to the fact that respondent No. 2 was promoted as an Officer on 11‑4‑1979 as per para. 2 of his grievance application. In respect of execution of power, of attorney in favour of respondent No. 2, learned counsel for the petitioner cited the case of Ganga R. Madhani v: Standard Bank Ltd. and others (1985 SCMR 1511). Learned counsel for the petitioner further argued that the petitioner could have moved the Labour Court under the Standing Orders 12(3) if there was simpliciter termination of his services. In this context reliance was placed on the case of Sikandar Hayat v. Sindh Labour Appellate Tribunal, Karachi and 2 others.

8. Mr. M.L. Shahani, learned counsel for respondent No. 2 argued that respondent No. 2 had claimed in his affidavit that he was a workman and was entitled to file application under section 25‑A of IRO and as such the onus to prove that he was not a workman shifted to the petitioner. It was further argued that charter of duties performed by respondent No. 2 in petitioner's bank at Darbelo, was not produced and as such adverse inference could be taken. In respect of the power of attorney executed in favour of respondent No.2, his counsel argued that the same was recalled by the petitioner‑Bank on 26‑4‑1981. It was also argued that the power of attorney entitled respondent No. 2 to act as attorney of the petitioner‑Bank jointly with another officer and not independently. Learned counsel for respondent No. 2 further argued that the evidence on merits was also recorded by the Labour Court and as such the Tribunal was competent to give findings on merits and it was not necessary for the Tribunal to remand the case to the Labour Court. In support learned counsel for respondent No. 2 cited the cases of: -

(i) Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others (1988 SCMR 1664).

(ii) Abdul Razzaq v. M/s. Ihsan Sons Ltd. and others (1992 PLC 424).

(iii) Sikandar Hayat v. Sindh Labour Appellate Tribunal, Karachi and others (1991 PLC 508).

(iv) Ganga R. Madhani v. Standard Bank Ltd. and others (1985 SCMR 1511).

(v) United Bank Ltd. v. Gul Shah Dayo and others (C.P. No. D‑286/89, decided on 25‑3‑1992),

9. The first and foremost requirement for maintaining a grievance application under section 25‑A of IRO is that the applicant should be workman either under the IRO or under the law which is being invoked for enforcement of any secured or guaranteed right. Since the respondent No. 2 had come to the Labour Court against an order terminating his service hence the respondent No. 2 was required to be "workman" under the Standing Orders Ordinance because he was enforcing his right under Standing Order 12(3).

10. In his affidavit respondent No. 2 did not state as to what were his duties in Darbelo Branch of the petitioner‑Bank. In his affidavit he simply stated that he was a workman and was entitled to file application under section 25‑A of IRO and he never worked as‑ full Manager but worked as officiating Manager. By saying so, respondent No. 2 did not discharge the onus of proving that he was a workman for the purpose of maintaining his application under section 25‑A of IRO. It is correct that mere designation would not determine status of the employee and the same can be determined from the nature of his duties as per the view taken in the case of National Bank of Pakistan v. Lutufullah Abro (1990 PLC 142). The question whether respondent No. 2 was a "workman" or otherwise, being a question of fact, was to be ascertained on the basis of the evidence to be adduced by the parties, as per the view taken in the case of National Bank of Pakistan v. Nisar Ahmed and others (1990 PLC 209). In the case of Chairman, Brooke Bond v. General Secretary, Union (PLD 1969 Lah. 717) the view taken was that the true nature of the duties performed by the employee, is the determining factor in ascertaining if he was a "workman" or not, within this definition and in case the manual work forms only a small and auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. Decision in said case was approved by the Supreme Court of Pakistan in the case of Brooke Bond (Pakistan) Ltd. v. Conciliator and others (PLD 1977 SC 237). Learned counsel for respondent No. 2 did not cite any authority to show that mere statement in affidavit by an employee, that he was a "workman" discharged the onus which lies upon such employee to prove that he was a "workman". In the case of Ganga Madhani (1985 SCMR 1511) cited by learned counsel for respondent No. 2 as well as by learned counsel for the petitioner, a bank officer Grade‑III was conferred with powers and was required to perform functions, which can neither be termed as manual nor clerical work and they evidentially involved the exercise of discretion and all taking of important decisions. Such bank officer was also given power to manage some of the affairs of the bank and he was held to be not a "workman" within the meaning of clause (i) to section 2 of Standing Orders Ordinance. It was also held in the said case that definition of "workman" given in Standing Orders Ordinance, completely excludes from its ambit persons employed in supervisory, administrative or managerial capacity and makes it amply clear that the duties of a "workman" have nothing whatsoever to do with the control or management. In the case of Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others (1988 SCMR 1664) the party invoking jurisdiction of the Labour Court under section 25‑A of IRO was Manager in a branch of the bank and he was held to be a "workman" by the Labour Court as well as by the Labour Appellate Tribunal. Such view was assailed in the Peshawar High Court, which held that for maintaining an application under section 25‑A of I.R.O. the applicant was required to be "workman" under the IRO Peshawar High Court did not unsettle findings of the Labour Court and the Labour Appellate Tribunal. The Supreme Court of Pakistan declined to interfere with concurrent finding of fact about the concerned employee being a "workman", as such finding was established by evidence. In the cited case, the finding of fact about the concerned employee being "workman" was based on evidence. As against that, in the instant case there was not an iota of evidence from the side of the respondent No. 2 to show, as to, what was the nature of his job in Darbalo Branch, where he was posted as Manager or in his words as "acting Manager". In the case of Abdul Razzaq (1992 PLC 424) it was held that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question whether an employee is a workman or not, and not his designation which is not conclusive. Lastly in the case of United Bank Limited (C.P. No. D‑286 of 1989) decided by a D.B. of this Court (to which one of us was a member) an officer of a bank was held to be covered by the definition of "workman" as given in the Standing Orders Ordinance. In the said case, the concerned employee had brought evidence on record to show that during the period of his posting at a branch, to which charge‑sheet related, he was doing clerical work of preparing vouchers, making entries in the registers, going from door to door to contact the clients for deposits etc. It was on the basis of that evidence, that concerned employee was held to be covered by the definition of "workman."

11. Unfortunately in the Instant case, the respondent No. 2 in his evidence, did not even allege much less prove that in Darbalo Branch he was doing clerical or manual work. It was not suggested to the only witness namely Syed Mashkoor Ali examined by the petitioner, that the respondent No. 2 was doing clerical or manual work in Darbalo Branch. Even in his grievance application respondent No. 2 did not state, if he was doing any manual or clerical work in the Darbalo Brnach.

12. As against this, Syed Mashkoor Ali witness for the petitioner stated in his affidavit that at the relevant time respondent No. 2 was Manager, Darbaio Branch and was not "workman" under any law and that a power of attorney was executed in his favour but the same was cancelled under a circular dated 26‑4‑1981. In his cross‑examination Syed Mashkoor Ali stated that Branch Managers were given power of attorney and that power of attorney Exh. 4‑A was executed in favour of respondent No. 2 as an Officer and not as Manager. Even if thus power of attorney is excluded from consideration, there is no evidence to show that respondent No. 2 was doing manual or clerical work and was covered by the definition of workman given in the Standing Orders Ordinance.

13. Learned counsel for respondent No. 2 also relied on a case of Sikandar Hayat (1991 PLC 508) where no fault was found with order of termination of an employee and the view taken was that termination simpliciter of a workman was permissible under Standing Order 12.

14. As a result above discussion, we are of the view that the Labour Court rightly held that the respondent No. 2 was not workman under the Standing Orders Ordinance or under the IRO and as such he could not have filed the grievance application before the Labour Court. Consequently we accept this Constitution petition and declare the impugned order to have been passed by the Tribunal without lawful authority and to be of no legal effect and we restore the order of Labour Court dated 5‑2‑1983. There will be no order as to costs.

15. In said terms we had passed short order on 18‑8‑1992 and these are reasons for the same,

16. H.B.T./H‑338/K Petition accepted.