NATIONAL BANK OF PAKISTAN, HYDERABAD Versus SINDH LABOUR APPELLATE TRIBUNAL

ABDUL RAHIM KAZI, J.‑‑‑ This petition has been filed by the National Bank of Pakistan challenging the orders passed by the Sindh Labour Appellate Tribunal in Appeal No. HYD‑10/1987 on 19‑8‑1987 whereby the orders passed by the Labour Court No. VI at Hyderabad were set aside and the respondent No. 2 was directed to be reinstated in service with full back benefits forthwith.

2. Briefly the case of the" petitioners is that the respondent No. 2 was an employee of petitioners serving as Senior Head Cashier in officer cadre Grade-III and was posted at VR Branch in Thatta District. It is further the case of the petitioners that the respondent No. 2 was drawing more than Rs.800 per month and his duties were of supervisory in nature and of attesting documents. The allegation against the respondent No. 2 is that during his posting at the said Branch, he committed defalcation of certain amounts on various dates between 29th September and 1st November of the year 1979, the total amount so misappropriated being Rs.2,900 and when the said defalcations was detected, the respondent No.. 2 admitted his guilt and deposited the aforesaid amount through Pay Slips in his own handwriting. The petitioners after holding preliminary enquiry issued a charge‑sheet on 13‑12‑1979, which was replied to by the respondent No. 2 on 20‑12‑1979. The respondent No. 2 was then formally dismissed on 24‑7‑1980 and he filed a departmental appeal on 20‑9‑1980 but during the pendency of the departmental appeal he filed a Constitutional petition on 25‑4‑1982, which was disposed of by a consent order dated 26‑5‑1982, according to which, the respondent No. 2 was allowed to file another departmental appeal and the petitioners undertook not to raise the point of limitation. Accordingly, a fresh departmental appeal was filed by respondent No. 2 on 29‑5‑1982, which was rejected on 19‑9‑1982. Consequently, the respondent No. 2 served a grievance notice on the petitioners and thereafter filed a grievance petition before the Labour Court No. VI, Hyderabad, which was dismissed. The respondent No. 2 then preferred an appeal before the Sindh Labour Appellate Tribunal, which was allowed as above. Being aggrieved, the petitioners have preferred this Constitution petition.

3. We have heard the learned counsel for the petitioners. He has raised the following points:

(i) The employees of the petitioners are governed by statutory rules relating to the terms and conditions of their service and, therefore, Standing Orders are not applicable.

(ii) The respondent No. 2 having been dismissed from 'service is not a workman and, therefore, Labour Court has no jurisdiction in the matter.

(iii) Statutory rules do not provide any period of limitation

(iv) Back benefits could not be granted in the circumstances of the case,

4. While dealing with the first point Mr. Partab Rai, learned counsel for the petitioners has submitted that the employees of the petitioners, Bank are governed by National Bank of Pakistan (Staff Service) Rules, hereinafter called the `Service Rules' and, therefore, the provisions of standing Order; Ordinance, 1968 would not be applicable to the present case. From this the learned counsel has submitted that since the service of the respondent No. 2 was to be governed by the said Service Rules, he could not seek remedy before the Labour Court. The Labour Court in its judgment has observed that there were the Service Rules of 1973 which were superseded by subsequent Service Rules framed in the year 1980 but since the Service Rules of 1980 were not statutory rules, therefore, the provisions of Standing Orders Ordinance would be applicable in the case of the present respondent No. 2. We cannot agree with the contention of the learned counsel for the petitioners and are also of the view that the observations made by the Labour Court in the judgment are erroneous. This point has been discussed at length in the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal (1990 PLC 197) by a Division Bench of this Court which judgment is also authored by one of us (Abdul Rahim Kazi, J.). It has been held in this case that the Service Rules of 1980, not statutory rules, the same can at the most of construed as departmental instructions; and that the Service Rules of 1973 which were framed with the approval of the Government in terms of section 32 of the National Bank of Pakistan Ordinance (XIX of 1949) are statutory rules within the meaning of first proviso to section 1(4); and that they hold the field and cannot be termed as superseded. In this case it has also been held by the Division Bench that grievance petition by the employees of the petitioners Bank who are not covered by Standing Orders Ordinance, 1968 would be competent under section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969). Similarly, in the case of Iftikhar Ahmed and others v. President, National Bank of Pakistan (PLD 1988 SC 53) their Lordships have been pleased to hold as under:‑‑

"15. It was no longer disputed before us that the Ordinance applied to the Banks and such of their employees as were covered by the definition of worker or workman as given in section 2 (xxviii). The judgments under appeal were disposed of after examination of the question of jurisdiction alone. To determine whether an employee was worker/workman or not an inquiry into facts is also required. The grounds upon which the status of the appellants as workers/workmen was challenged were not examined in the High Courts. We would accordingly express no opinion in the matter.

16. For the reasons stated above, we are unable to agree with the view taken by the High Courts of Sindh and the Punjab that the petitions filed by the appellants before the Labour Courts under section 25- A(4) of the Ordinance were not competent solely for the reason that their terms and conditions of service were regulated by the award of the Wage Commission. As the right to approach to the Labour Court was available to them under the Ordinance itself, it is unnecessary to examine the further question whether they could also invoke the jurisdiction of the said Courts under Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders).

17. As we are unable to sustain the view taken in the High Courts that the Labour Court had no jurisdiction to entertain the petitions of the appellants we accept these appeals, set aside the judgments and orders recorded by the High Courts. We are informed that apart from the question of jurisdiction of the Labour Court there were other issues also which required determination. Accordingly, we would remand the appeals to the High Courts for consideration of the other issues. There will be no order as to costs in these appeals."

In view of above two judgments, Wean safely be held that the employees of the petitioners Bank who fell within the category of "worker" or "workman" can seek recourse before the competent Labour Court constituted under section 35 of the Ordinance of 1969, which has the jurisdiction to entertain, try and adjudicate the grievance of the workers employed in the National Bank and financial institutions.

5. The next point urged by the learned counsel for the petitioners is that since the respondent No. 2 stands dismissed from service, therefore, he is not a `workman' and thus he cannot seek any remedy under section 25‑A of the Industrial Relations Ordinance, 1969. According to the learned counsel such employee is no more an employee of the petitioners. He has placed reliance on the case of Ganga R. Madhani v. Standard Bank Ltd. and others (1985 SCMR 1511). This case is not directly on this point but in this case it was held by their Lordships that the appellant was not a workman for the reasons that he was appointed as an Accountant and was given powers to manage such affairs of the Bank exercised by himself or jointly with other Attornies of the Bank which could by no means be said to be manual or clerical in nature. The other case cited by the learned counsel for the petitioners is that of Muhammad Matin Hashmi v. National Construction Co. (1989 PLC 278). In this case also the Division Bench of this Court to which one of us (Abdul Rahim Kazi, J.) was a member had held that the petitioner was not a "workman" for the reasons that designation of the petitioner was of an administrative officer‑but duties assigned to him were not those of a workman; and that he was provided with a clerk, a Chowkidar, a cook, a car and a driver." The third case referred to by the learned counsel is that of Naeem Wahid v. Sindh Labour Appellate Tribunal (1984 PLC 352). In this case also, another Division Bench bf this Court has laid down the true test for determination whether the incumbent is a workman or not.

6. Mr. Bashir Awan, the learned counsel for respondent No. 2 repelling the above contentions has submitted that the present respondent No. 2 is a workman because he was working as a Head Cashier in the department; and that the nature, of his work involved clerical work also. He has placed reliance on the case of Organisation of Karachi Port Trust Workers‑ Karachi v. Karachi Port Trust, Karachi and 2 others (1988 SCMR 922). In this case the Hon'ble Supreme Court had held that the Chowkidars and Havaldars employed in Karachi Port Trust did fail within the definition of workman and as such they could seek redress before the Labour Court. No doubt any person who is performing the manual or clerical work, skilled or unskilled, would fall within the definition of worker or workman. The worker and the workman have been defined in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, section 2(i) as under:‑ .

`Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."

While in section 2(xxviii) of the IRO the worker is defined as under:

"(xxviii) `Worker' and `workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute include a person who has been dismissed, discharged, retrenched and 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 but does not include any person‑‑

(a) who is employed mainly in a managerial or administrative capacity, or

(b) who, being employee in supervisory capacity draws wages exceeding Rs.800 per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."

The definition of industrial dispute has been given in clause 13 of the same Ordinance, which reads as under:

"(xiii) `Industrial dispute' means any dispute or difference between employers or employees or between employers and workmen or between workmen and workmen, which is concerned with the employment or non‑employment of the terms of employment or the conditions of work of any person, and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force."

From the above definitions, it is clear that any employee of an industrial or commercial institution, who falls within the definition of worker or workman can seek remedy before the Labour Court created under the Ordinance though the terms and conditions of his service are governed by any other law. As regards the contention of the learned counsel for the petitioners that dismissed employee is no more a worker or workman, a plain reading of the definition of the worker given in section 2(xxviii) of Industrial Relations Ordinance, 1969 would show that the same includes the person, who has been I dismissed, discharged and retrenched etc. from employment in connection with or as a consequence of that dispute or whose dismissal etc. has led to that dispute and a further reading of clause (xiii) of the same section would show that an industrial dispute would include the dispute between the employers and workmen which is concerned with the employment or unemployment or the terms of employment or the conditions of work etc. The learned counsel for the petitioners has placed reliance on number of cases. He has referred to the case of Vice‑President, National Bank of Pakistan, Gujranwala v. Punjab Labour Appellate Tribunal and 7 others 1985 PLC 1053. Even in this case a learned Division Bench of the Lahore High Court has field that a worker dismissed in consequence of industrial dispute is covered by definition as given in section 2 of the Industrial Relations Ordinance. The other case relied upon by the learned counsel is that of Trustees of the Port of Karachi v. Muhammad Karim and another (1987 PLC 846). In this case also a learned Single Judge of this Court has observed as under:

"However, after deletion of subsection (6) from section 25‑A of the Ordinance, the intention clearly appears to be that only such persons can approach the Labour Court in respect of their removal, dismissal etc. from service who fall within the ambit of definition of "workman" in the Standing Orders Ordinance."

He has also relied upon the case of District Manager, KTC v. Muhammad Ayub (1987 PLC 102). The facts of this case are not applicable to the present case as in this case the point, under consideration was retirement of the employee on attaining age of superannuation. However, in this case the Labour Court had directed reinstatement of respondent in service which was maintained by the Labour Tribunal. Lastly, the learned counsel has referred to the case of Superintending Engineer, Irrigation v. Punjab Labour Appellate Tribunal and another (1987 PLC 180). In this case also findings of fact were against the incumbent.

7. In view of the above discussion, we have come to the conclusion that the present respondent No. 2, if he is covered within the definition of worker or workman could seek the remedy before the Labour Court. However, a perusal of the judgment of the Labour Court shows that no specific finding has been given by the Labour Court on this point as to whether the present respondent No. 2 is covered by the definition of the worker or workman. It appears that the Labour Court has proceeded in the matter on the assumption that the respondent No. 2 does fall within the definition of worker because the Labour Court has observed that the provisions of Standing Orders Ordinance are applicable to the employees of the petitioners‑Bank. The learned Sindh Labour Appellate Tribunal has held "I, therefore, hold that the appellant was a workman under the Standing Orders Ordinance, 1968." The Labour Appellate Tribunal has not given any reasons in coming to such conclusion. All that is said in the order is the reproduction of the submissions of the counsel for respondent No. 2. It has been pointed out by the learned counsel for the petitioners that from the outset before the Labour Court, the present petitioners had taken the plea that the respondent No. 2 was not the worker or workman and, therefore, he would not be entitled to seek any remedy under section 25‑A of the Industrial Relations Ordinance, 1969. It may be observed that a Labour Court would get jurisdiction in a case which pertains to workman and, therefore, it was incumbent upon the Labour Court to have determined this point first. It is not that every employee of a National Bank of Pakistan can be termed as a worker or workman. The employees of the nationalised Banks would include managerial and supervisory staff also, who are 'assigned duties purely of managerial or supervisory nature and their duties may not pertain to manual or clerical work. In the instant case, the petitioners have contended that the respondent No. 2 was the Head Cashier, who had certain other Cashiers working under him and he used to do only the supervisory work. For these reasons, it would be necessary for the Labour Court to decide this issue first.

8. With regard to submission of the learned counsel for the petitioners on the point of limitation to the effect that rules do not provide any period of limitation for serving a show‑cause notice, we agree with the findings of the Labour Court. However, the other point urged by the learned counsel for the petitioners is that the lower Court could not have allowed back benefits as the respondent No. 2 has failed to prove that he was not gainfully employed during the period he remained out of service. In the case of National Bank of Pakistan v. The Sindh Labour Appellate Tribunal, Karachi and another (1991 PLC 213) to which one of us (Muhammad Aslam Arain, J.) was a member, it has been held that once the Labour Court or Labour Appellate Tribunal came to the conclusion that termination of service of an employee was unlawful, employee as a matter of course, should be granted back benefits unless employer was able to establish by cogent evidence that employee was gainfully employed elsewhere. Also in the case of Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087) their Lordships have laid down the principle in the following words:

"Back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal had been set aside; and that onus of proof in cases where a workman is entitled to receive the back benefits lies on the employer to show that the workman was not gainfully employed during the period he was out of service."

Even otherwise the worker in such cases advances a negative proposition that he was not gainfully employed, if this proposition is controverted by the employer that becomes a positive or asserted proposition and in cases as such the onus to prove the same would lie on the employer.

9. In this view of the matter, we are of the view that this is a fit case for remand to the Labour Court with the direction to give finding on the issue "whether the respondent No. 2 is covered within the 'definition of worker or workman?" Consequently, we allow this petition with the above observations, set aside the judgments of the two Courts below and remand the case to the Labour Court No. VI, Hyderabad to give fresh findings with regard to the issue framed by us above. There will be, however, no order as to costs.

A. A. /N‑437/K Case remanded.