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Appeal No. SUK‑112 of 1981, heard on 12th April, 1981.

‑‑‑‑ Ss. 2 (i) & 12(3)‑‑‑Termination of service‑‑Remedy of grievance petition before Labour Court‑Available to only a worker‑‑Whether or taut an employee was a worker‑‑Onus of proof‑‑Upon peti tioner‑Determining factor‑‑Clerical or manual work in direct, immediate and substantial part of work and not sundry duties incidentally performed by an employee‑Power of hire and fire Not a determining factor‑‑Not being head of Branch or Depart ment or to be under some one‑Not material‑Bank Officer, Grade III‑‑‑Whether Or not holds power of attorney‑Not a work‑man hence not entitled to file grievance petition against termination of ser‑vice‑Grievance petition‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A.

Johnson & Johnson (Pak.) Ltd. v. Zubair Ahmed 1980 P L C 622; Mohammad Iqbal Soomro v. United Bank Ltd. 1978 P L C 360; Mohammad Ali Ghani Khan v. Habib Bank Ltd., Karachi 1979 P L C 156 and Chair man, Brooke Bond Ltd. v. General Secretary, Union Karkunane Brooke Bond P L D 1969 Lah. 717 rel.

Talat Farooq v. Messrs Chloride Pakistan Ltd., (Civil Petition for Special Leave to Appeal No, K‑145 of 1976) (unreported) rel.

Mumtaz All Siddiqi for Appellant.

Date of hearing: 12th April, 1981.

The appellant, who was employed as officer, Grade lII, in the United Bank Ltd., the respondents herein, was dismissed from service with effect from 20th April, 1980, on the charge of deliberately and purposely keep ing pending with himself a cheque for Rs. 30,000, which had been sent for collection and thereby causing financial loss to the Bank. The dis missal orders were based on the report of the Enquiry Officer who found the aforesaid charge fully established against the appellant. The appel lant challenged the orders of his dismissal before the learned VI1th Labour Court which has dismissed his grievance petition on the ground that the appellant is not a workman and consequently his grievance petition is not maintainable. The appellant has now come up in appeal to this Tribunal against the said decision of the learned Labour Court.

2. It has been held by this Tribunal in the case of Johnson & Johnson (Pak.) Ltd. v. Zubair Ahmad (1) that a person whose services have been terminated does not fall within the definition of a worker for the purpose of the I.R.O. and cannot maintain or file a grievance petition under section 25‑A, I.R.O., unless the termination of his services is in connection with or is a consequence of an industrial dispute or has led to such a dispute. It has further been held in the said decision that an employee whose services have been terminated can file a grievance petition under the provisions of clause (3) of Standing order 12 read with section 25‑A, I. R. O., provided that he falls within the definition of workman' as given in the Sind Industrial & Commercial Employment (Standing Orders) A Ordinance, 1968, and that the burden of proving that he comes within the definition is on the employee concerned. It was, therefore, for the appellant to establish that he falls within the definition of workman as given in the Standing Orders. However, no tangible evidence in this behalf was led by the appellant's or is on the record of the learned Labour Court. The appellant, in his grievance petition, has not even claimed that he is a workman, whether falling under the I. R. O. or the Standing Orders. On the contrary, in his grievance petition, he has frankly con ceded that he was an officer, Grade 111, in the respondent bank. Even in his evidence before the learned Labour Court, he has merely claimed that he is a workman both for the purposes of the I.R.O. as well as the Standing Orders, but he has led no evidence to establish that he was em ployed to do any manual or clerical work. On the other hated, it is an Admitted position that the appellant was given the usual power of attor ney issued in favour of the officers. It has been held by this Tribunal in the cases of Mohammad Iqbal Soomro v. United Bank Ltd. (1978 P L C 360), and Mohammad Ali Ghani Khan v. Habib Bank Ltd. Karachi (1979 P L C 156), that an employee who was working as an officer in a bank and was holding a power of attor ney is not a workman, but on the contrary falls within the definition of employer for the purposes of the I. R. O. In the latest case of Syed Kifyat Hussain v. United Bank Ltd., decided on 9th April, 1981, this Tri bunal has held that an officer, Grade III, in the United Bank Ltd., des pite the fact that he did not hold power of attorney in his favour was not a workman for the purposes of the Standing Orders and is accordingly not entitled to maintain a grievance petition against the termination of his service.

3. It was contended by Mr. Mumtaz Ali Siddiqi, the learned counsel for the appellant, that the appellant was employed to do clerical duties in that he was required to maintain several registers. He, however, was unable to refer me to any evidence on record in support of his contention, although a pointed question in this behalf was put to him. It was also urged by Mr. Siddiqi that as the appellant did not have the power to hire and fire, consequently, he should be deemed to be a workman for the purposes of the Standing Orders. It may, however, be pointed out that the power to hire and fire is not the determining or even the most material factor for deciding whether an employee is a workman B for the purposes of the Standing Orders. The determining factor is whether the employee is engaged to perform manual or clerical work. It was next submitted by Mr. Mumtaz Ali Siddiqi that the power of attorney given to the appellant was withdrawn from him about 11 years before the date he bad given evidence, as stated by the appellant in his testimony before the learned Labour Court. Even if this assertion of the appellant be correct, it will make no material difference, for firstly, the withdrawal of the power of attorney was evidently in consequence of the charges against the appellant which related to the period between 18th December, 1978 and 28th December, 1978 and subsequent suspension of the appellant in consequence of those charges, and secondly, as pointed out in the case of Syed Kifayat Hussain referred to above, it is the nature of duties which an employee is required to perform that determines g whether he is a workman for the purposes of the Standing Orders and not merely the holding of a power of attorney. As pointed out by the Lordships of the Lahore High Court in the case of Chairman Brooke Bon Ltd. v. General Secretary, Union Karkunane Brooke Bond (P L D1969 Lah.717), the true test for determining whether an employee falls within the definition of workman for the purposes of the Standing Orders is to look to the direct, immediate and the substantial part of the work for which he is employed and not to sundry duties incidently performed by him. The appellant admittedly was an officer of the bank and even if a part of hi duties involved the performance of clerical duties, he would not be deemed to be a workman for the purposes of the Standing Orders, unless the direct, immediate and substantial part of his duties involved clerical or manual work.

4. It was finally submitted by Mr. Siddiqi that as the appellant was not the head of the branch where he was employed but was working under tire manager, therefore, he should be deemed to be a workman the purposes of the Standing Orders. It has been held by the Supreme Court of Pakistan in the case of Talat Farooq v. Messrs Choloride Pakistan, Ltd. (Civil Petition for Special leave to Appeal K‑145 of 1976, decided on 21st September, 1976), that merely because a person pray be working some one else, he cannot be deemed to be a workman for the purposes 0,1 Labour laws as even the General Manager of the company has to work under the Directors of the Company.

5. For the reasons discussed above, I see no merit in this appeal an‑d accordingly dismiss the same in limine.

Appeal dismissed,

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