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Appeals Nos, SUK‑134 to 137 of 1982, decided on 10th August, 1982.

Industrial Relations Ordinance (XXIII of 1969)‑--

--‑‑S. 25‑A read with West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance (VI of 1968), Ss. 2(i) & 12 (3) Grievance petition against termination of service‑Maintainable only if petitioner falls within definition of workman under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not merely within definition of "workmen" under Industrial Relations Ordinance, 1969‑Bank‑Officer Grade II though not posses sing Power of Attorney‑Performing no manual or clerical work‑‑ Not a "workman" for purposes of West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968‑‑‑‑No pre sumption, held, could be raised that he was performing manual or clerical work‑Onus to prove same‑Upon petitioner‑Mere fact that proceedings against him were taken under Efficiency and Discipline Rules applicable to lower employees of Bank, held, would not make him a workman in absence of any tangible evidence to show that by nature of duties he fell within definition of "workman" under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Muhammad Sadiq for Appellant.

Hasan Hameedi for Respondent.

Date of hearing : "10th August, 1982.

DECISION

These four appeals by the United Bank Limited, are all directed against a decision of the learned Seventh Labour Court, Sukkur, given on 9‑8‑1982, holding that the dismissal from service of four' respondents, herein, is invalid and directing their re instatement in service with full back benefits. Three of the respondents namely, Abdul Wahab Qazi, Abdullah Memon and Shahid Hussain, were employed as Officer and in the year 1980 they were posted at the Fruit Market Bench, Ghcotki, as Manager/Grade II Officer, Grade II Officer and Grade III Officer respectively Respondent Rehmat uliah was employed as an Assistant in the Station Road Branch Cshotki in the year 1980. It appears that in the month of September 1980, there was an inspection of these branches and in consequence of that inspection separate charge‑sheets were served upon the four respondents. Tire charge‑sheet against Rehmatullah isdated 25‑1‑1981, against Abdul Wahab

Qazi is dated 18‑2‑1981, against Abdullah Memon is dated 19‑2‑1981 and against Shahid Hussain Abro is dated 18‑2‑1981 as in the case of Abdul Wahab Qazi. By that time, all the three respondents had been transferred from Fruit Market, Ghotki Branch and posted at the Zonal Office, Sukkur. It appears that on the basis of the various charges framed against the respon dent a joint enquiry was held and on the basis of the report of the Enquiry Officer, who found the charges against the four respondents proved, they were dismissed from service. The respondents preferred Departmental Appeals against their dismissal from service but the appeals were rejected. They, accordingly, filed grievance petitions under the provision of clause (3) of Standing Order 12 read with section 25‑A, I.R.O., before the learned Seventh Labour Court, Sukkur.

2. The respondents examined themselves in the proceeding before the learned Seventh Labour Court while S. M. Risalat was examined on behalf of the appellant Bank. He produced with his evidence the record of a common domestic enquiry held against the respondents. The learned Labour Court had held that all the four respondents were workmen for the purposes of the Labour Laws and hence their grievance petitions were main tainable. This view was based partly on the fact that the powers of attorney executed by the Bank in favour of Abdul Wahab Qazi, Shahid Hussain and Abdullah Memon were withdrawn by the Bank much before the proceedings were initiated by the Bank and they were charge‑sheeted and the further fact that there was a joint enquiry against them in the manner provided by the labour laws. The learned Labour Court has also taken note of the fact that no question was suggested by the respondent Bank to the three officers indi cating that they were not performing manual or clerical duties at the time of service of charge sheets n them. In other words the learned Labour Court considered that in the circumstances of the case the burden of proof was on the appellant bank to establish that the said persons were not workmen and were not entitled to file and maintain grievance petitions. On merits, the learned Labour Court has held that it has not been established that the domestic enquiry was held in the presence of the respondents, that the domestic enquiry does not establish the commission of any misconduct on the part of the respondent which resulted in financial loss to the Bank and that the report of the Enquiry Officer is perverse and riot supported by evidence. On these findings it set aside the orders wt dismissal in support of the respondent and ordered their re‑instatement in service with full back benefits.

3. I have heard Mr. Mohammed Sadiq, the learned counsel for the appellant Bank and Mr. Hasan Hameedi, Advocate, who appeared for the four respondents. The main contention of Mr. Sadiq was that the grievance petitions of appellants Abdul Wahab Qazi, Abdullah Memon and Shahid Hussain were not maintainable as they were officers of the Bank and do not come within the definition of workman as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It has been held by this Tribunal in the case of Johnson do Johnson v Zubair Ahmed (1980 P LC 622) that only a person who falls within the definition of workman as given in the aforesaid Ordinance is entitled to file a grievance petition under clause (3) of Standing Order 12 read with section 25‑A, I.R.O., against the termination of his services. In order that a person should fall with the, definition of workman as given in the said Ordinance he must be employed to do any skilled or unskilled manual or clerical work for hire or reward.. It is, thus, to be examine whether any of the respondents were employed to do any such work as specified in the above definition.

4. Now as regards respondent Rehmatullah, he admittedly was employed in the appellant establishment as an Assistant and was required to perform clerical duties. He, thus, clearly falls within the definition of workman as given in the above said Ordinance. This was frankly con ceded by Mr. Muhammad Sadiq, the learned counsel for the appellants. As regards the three remaining respondents namely, Abdul Wahab Qazi, Abdullah Memon and Shahid Hussain, the learned counsel submitted that as they were officers of the Bank they do not fall within the definition of workman as given in the aforesaid Ordinance and hence their grievance petitions were not maintainable, The learned counsel further sub mitted that the withdrawal of the powers of attorney given to them makes no difference in their status and did not make them workmen for the purposes of the Ordinance as they contained to work as officers of the Bank and were not required to do any manual or clerical work skilled or unskilled The learned counsel strongly contended that burden of estab lishing that they were workmen lay, in the circumstances, heavily upon the three respondents, which burden they have utterly failed to discharge as they have not only not led an iota of evidence to suggest that they were performing or were employed to perform manual or clerical duties but further apart from respondent Abdul Wahab, who had clearly asserted that by reason of withdrawal of his power of attorney he had become a workman, the other three respondents have failed even to claim that they were workmen for the purposes of the Ordinance. In support of his conten tion that the burden of proof lay upon the three respondents the learned counsel relied upon the decision of this Tribunal in the case of Kifayat Hussain v. United Bank Limited (1982 P L C 116) and the unreported case of Hafzur Rehman v. Vice‑President United Bank Limited (SUK‑112 of 1981), deci ded on 12‑4‑1981. In the case of Kifayat Hussain it was held that as he had been promoted from clerical staff to Officer Grade III the onus of proof was on him to show that he still continued to be a workman and had not ceased to be a workman upon becoming an officer. In the unreported case of Hafizur Rehman this Tribunal has observed that a Grade III officer in the United Bank Limited would be presumed to be not a workman for the purposes of the labour laws even if he did not hold a power of Attorney from the Bank. as in the instant case.

5. Mr. Hasan Hatneedi, the learned counsel for the respondent, on the other hand submitted that as the three respondent officers have been sub jected to a departmental enquiry under the provisions of the Bank & Finan cial Institutions (Efficiency & Discipline) Riles, 1975, as admitted by the witness for the bank, they were treated as workman, since the said rules are applicable only to workmen and not officers and hence the burden of proof lay on the appellant bank to show that in fact they were not workmen. In support of his contention the learned counsel relied upon the case of Warner Lambert (Pakistan) Limited v Labour Court No. 111 (1979 P L C 370) and the observations by a Division Bench of Karachi High Court in the case of Abdul Aziz v. Sind Labour Court (Constitution Petition No. D‑204 of 1981). The decision in the case of Warner Lambert, which is by a Single Judge of the Karachi High Court is not relevant for the purposes of the instant case as it in respect of the definition of worker as given in the I.R.O. It was observed that since the definition of worker as given in the IRO is very wide and covers the case of every employee, the burden of proving that an employee is not a workman is upon the person who sets up such plea. It was observed that the definition of worker as given in the I. R. O. is of presumptive character and to every employee unless covered by exemptions of supervisor or manager o administrator. We are here not concerned with the definition of workman as given in the I.R.O. but with the definition of workmen as given in the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, The definitions given in the two laws are wholly different. The observations of the D. B. in the case of Abdul Aziz relied upon by Mr. Hasan Hameedi read as follows :‑

The question whether a Chowkidar or a Security Guard is covered by the definition of workman given in the Ordinance will depend on the nature of duties, as pointed out hereinabove. We are inclined to hold that if an employer takes action under the provisions of the Ordinance against his employee the burden of proof is shifted on him to prove that the employee concerned does not fall within the definition of the workman given in the Ordinance though the charge sheet was issued, inquiry was held, service was terminated under the provisions of the Ordinance. In the instant case as the respondent employers had taken action against the petitioners under the provi sions of the Ordinance as pointed out hereinabove, the burden of proof was on the respondent employers to show that in fact the petitioners were not covered by the definition of workman in spite of the fact the fact that the charge‑sheets were issued and inquiries were held and the service were terminated under the Ordinance."

In the instant case we are not dealing with the case of a watchman, security guard or ordinary workman but Officers of a Bank. In their case, no presumption can be raised that they are employed to do manual or clerical work, skilled or unskilled. The mere fact that proceedings against the were taken under the Efficiency and Discipline Rules applicable to the lower employees of banks will not make them workmen unless there is tangi ble evidence to show that by reason of the nature of duties which they wet C required to perform they fall within the definition of workmen as given in the aforesaid Ordinance. As no special procedure has been prescribed for ter minating the services of Officers of Banks it is only fair and .appropriate that before dismissing an officer of the bank, a reasonable opportunity of defence should be given to the officer. Such opportunity is provided under the Banks Efficiency and Discipline Rules. The adoption of that procedure, therefore, would not, in the circumstances of the case, give rise to the pre sumption that these persons are workmen for the purposes of the Satanding Orders. Furthermore, there are two other circumstances which militate against the view that the three respondents concerned were treated as work men for the purposes of Standing Orders. The first is that the Efficiency and Discipline Rules of 1975 were prescribed under the First Wage Com mission Award which was superseded by the Award made in 1978 by the Second Wage Commission for Banks and Financial Institutions. Different provisions were made in the Sec‑)n& Wage Commission Award for punish ment to bank employees. If, therefore, the three officers of the respondents were to be dealt with in accordance with the report in force of the Wage Commission for the employees of Banks and Financial Institutions they should have been dealt with the providing of the Second Wage Commission Award. The other circumstance militating against the presumption that the appellant bank had treated the three officers/respondents as workers is that there was a joint enquiry against them and respondent Rehmatullah who was admittedly a workman. Finally, I may refer to the letter, dated 16‑9‑1981. from the appellant bank to respondent Abdul Wahab Qazi rejecting his departmental appeal against his dismissal from service. In that letter it is categorically asserted that being an officer of the bank he was not covered by the provisions of the Wage Commission Award.

6. There remains the case of the respondent, Rehmatullah. I have already pointed out that admittedly he was employed in a clerical capacity as an Assistant. The charges levelled against him in the charge‑sheet, dated 25‑2‑1981, read as follows :‑

(1) You had obtained an advance of Rs. 500 against salary which was subsequently adjusted by debiting party's account instead of your personal account.

(2) It has been reported that you prepared wrong statements and always misreported figures of T O.Ds., S.O.Ds. and C.Cs.

(3) all debit/credit vouchers of various unauthorised entries were pre pared by you and posted in respective ledgers by you. But you never reported these unauthorised transactions to Zonal Office/ Head Office.

(4) By preparing false vouchers; you in accomplice with Mr. Mureed Hussain and Mr. Iqbal Hussain have misappropriated /embezzled the amounts, shown in the enclosed list."

According to the report, of the Enquiry Officer all these charges were established against him and it was on the basis of these charges and the Enquiry Officer's finding in respect of them that he was dismissed from service vide order, dated 24‑7‑1981. A perusal of the charge‑sheet would show that details of the alleged acts of misconduct and the dates when they were committed have not been specified in respect of the charges. Further more, neither any domestic enquiry in respect of these charges appears to have been held nor is there any evidence on record to substantiate these charges. The only charge in respect of which there is evidence, in the form of admission on the part of respondent, is charge No. 1, which relates to obtaining advance of Rs. 500, which was debited to a party's account. Ac cording to the respondent's statement before the Enquiry Officer this amount was taken by the Manager of the Bank. Since this respondent was dismissed from service on the ground that all the charges were established against him whereas at best the evidence in the domestic enquiry as also before the Labour Court is to the effect that he wrongly debited Rs. 500 to a party, which amount in fact was said to have been taken by the Manager of the Branch, his dismissal from service cannot be sustained, as it cannot be pre sumed that the employer would have awarded penalty of dismissal if he had. considered only this charge against him. I would, accordingly, maintain the orders of the learned Labour Court so far as this respondent is concerned but at the same time would observe that if the bank wishes to proceed further against this respondent on the first charge, i.e. embezzlement of an amount of Rs. 500, it would be open for them to do so and pass appropriate orders on the basis of evidence which may be produced against him.

7. As far as the remaining three respondents, namely, Abdul Wahab Qazi, Abdullah Memon and Shahid Hussain, since it appears that " they were not employed to do clerical or manual work, :killed or unskilled, their grievance petitions were clearly not maintainable. I would, there fore. set aside the decision of the learned Labour Court so far as they are concerned and allow the three appeals of the appellants.

Appeals allowed.

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