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Appeal No. HYD‑429 of 1981, heard on 18th May, 1982.

(a)

West Pakistan

‑‑ S. 2 (i) & S. O. 12 (3)‑"Workman"‑Head Cashier in a Bank‑Himself performing duty of receipt and delivery , of cash counting notes and making necessary, entries in cash register‑Such duties, held, involve manual and clerical work-A workman -Entitled to grievance petition before Labour Court against termina tion of service‑‑Industrial .Relations Ordinance (XXIII of 1969), S. 25‑A.

(b) Industrial Relations Ordinance (XX III of 1969)‑‑

‑‑ S. 25‑A‑Grievance notice and petition‑Limitation‑Bank employee case‑Service rules providing right of appeal to higher authorities against dismissal order‑Departmental appeal filed after 19 ' days of date of dismissal order‑Appeal fetching no reply‑Grievance petition filed‑Griev4npe of petitioner, in circumstances, hello would be not only original order of dismissal but also in respect of failure of authorities to take decision on appeal‑Petitioner; held, in circumstances, entitled to writ for a reasonable time for decision on his appeal before taking further proceedings‑Grievance thus arose when petitioner is reasonably deemed to have come to such conclusion after giving sufficient time to Bank authorities to decide his appeal -Six months time, held, reasonable.

Senior Vice‑President (C. M.), National Bank of Pakistan v. Muhammad Javed Khan and others 1981 P L C 542 rel.

Rashid Ahmad v. The State P L D 1972 S C 271 and P L D 1949 P C 45 ref.

(c)

West Pakistan

‑‑ S. 1 (4) & S. Q. 15 (4)‑Bank employee case‑Disciplinary and Efficiency Rules for Banks and Financial Institutions, 1975 framed by Wage Commission under Industrial Relations Ordinance, 1969‑Not statutory rules but award of Commission‑Not even inconsistent with provisions of S. O. 15 (4)‑Do not oust employees of Banks from ambit of Ordinance and Jurisdiction of Labour Court ‑ Charge sheet served not within one month of alleged misconduct‑Invalid -Dismissal order based upon such charge‑sheet‑Not sustainable- Grievance petition against dismissal order, held, rightly accepted by Labour Court‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38.

Allied Bank of Pakistan Ltd. v. Labour Appellate Tribunal, Punjab 1982 P L C 1 rel.

N. B. P. v. Nizamuddin Mehar 1980 P L C 1118 and‑ A. Javed v. N.I.R.C. P L D 1978 Kar. 64 rel.

(d) Industrial dispute‑--

---‑Domestic enquiry ‑Confining merely to recording of statement of accused in question answer form‑No witness examined‑Accused denying allegations‑Enquiry, in circumstances, held, could not be said to have been conducted.

Mamoon A. Kazi for Appellant.

Faiz Muhammad G. Soomro for Respondent.

Date of hearing : 18th May, 1982.

This appeal is directed against a decision of the learned VIth Labour Court, Hyderabad, allowing the grievance petition of the respondent herein and directing the appellant Bank to re‑instate him in service with full back benefits.

2. The facts which have led to the filing of the present appeal; shortly stated, are that on 16th February, 1978 the respondent, who was working as Senior Head Cashier in the Fauji Sugar Mills Branch Tando Muhammad Khan. was charge‑sheeted for unauthorized by crediting in his S. B. account. during the period extending from 7th July, 1976 upto 31st October, 1977, different amounts, totaling Rs. 2,445.03. He was further charged, in the same‑charge‑sheet, with having managed to take, on 18th August, 1976, from the Exchange Account, a sum of Rs. 10 when there was no cash remittance on that date. failing to report to the Controlling authorities the embezzled cases in which he was a party ; jeoparadising the bank's interest and failing to report the misappropriation/embezzlement committed at the branch to the Controlling offices in terms of para. 13. Chapter 1. G. B. 1. failing to safeguard the interest of the hank's constituents and failing to co‑operate with the bank's auditor in detecting the irregularities to conceal the facts of misappropriation and embezzlement. It appears that the respondent work man by his letter, dated 17th March, 1978 submitted a reply to the Bank authorities, strongly denying the allegation made against him. His explana tion, however, was not found satisfactory and it was decided by the Bank authorities to hold an enquiry against him. Pending the holding of the enquiry, the respondent was placed under suspension. It is claimed by the appellant Bank that 2 enquiries were held against the respondent, first by Messrs Ikram Hussain and M. T. Siddiqi, Zonal Senior Inspector and Zonal Inspector respectively, and the second by Mr. Azizur Rehman, Assistant Vice‑President, and that in these enquires sufficient. material came out against the respondent. Photostat copies of these reports were filed by the appellant Bank with their reply statement. On the other hand, it is contended by the respondent that no enquiry as required by law was held. against him. In any case, by office order, dated 10th April, 1980, the respondent was dismissed from service with immediate effect. The respondent filed a departmental appeal on 29th April, 1980 against the order of his dismissal from service. Nether the appeal was decided nor any intimation was given to the respondent in connection with his appeal by the Bank authorities. The respondent after waiting for about 61 months for. the disposal of his appeal, served a grievance notice on the appellant Bank on 4th January, 1981. No reply to the, respondent's grievance notice appears to have been given by the Bank authorities. The respondent, accordingly preferred a grievance petition before the learned VIth Labour Court on 26th January, 1981.

3. The appellant Bank resisted the respondent's grievance petition on the ground, firstly, that the respondent's case was not covered by law and that the Court had no jurisdiction, without disclosing the grounds on which this plea was founded, secondly, that the respondent had committed embez zlement in the Fauji Sugar Mills Branch and thirdly, that 2 independent enquiries were held in which the guilt of the respondent was established.

4. The learned Labour Court repelled the contention of "the appellant Bank that the respondent was not a workman for the purposes of the Stand ing Orders and hence his grievance petition was not maintainable. It held that though the respondent held the post of Senior Head Cashier, he was in fact the sole cashier in the Fauji Sugar Mills Branch, Tando Muhammad Khan, and thus, he was employed to do duties of clerical nature. The learned Labour Court further held that the charge‑sheet served upon the respondent was in violation of clause (4) of Standing Order 15 as it pertained to allegations of 1976 and 1977 and there was nothing to indicate that the respondent had been informed of his acts of alleged misconduct within one month of their commission as required by Standing Order 15 (4). The learned Labour Court has also held that no proper enquiry was held against the respondent and pointed out that Azizur Rehman, who had conducted the enquiry against the respondent, did not know who was the complainant against the respondent and did .not examine any witness from the Bank during the enquiry. All that he seems to have done, according to the learned Labour Court was to record the statement of the respondent and then submitted his report.

5. I have heard Mr. Mamoon Kazi, the learned counsel for the appellant Bank and Mr. Fait Muhamnl4d G, Soomro, who appeared for the respondent workman. Mr. Mamoon Kazi assailed the impugned decision of the Learned Labour Court on the following grounds :‑

(i) that the respondent was not a workman for the purposes of the Standing Order as admittedly he belonged to the officers' grade being Senior Head Cashier ;

(ii) that the respondent in fact seeks to enforce the award of the Wage Commission for Banks and Financial Institutions which can only be done by the N. I. R. C., since the award of the Commission is deemed to be an award of the N.. I. R. C. ;

(iii) that the grievance petition of the respondent is further not maintainable as the requisite grievance notice was not given by the respondent to the appellant Bank within 3 months of the grievance having arisen ; and

(iv) that the provisions contained in clause (4) of Standing order 15 requiring the bringing to the notice of the workman the acts of misconduct committed by him, within one month of their commis sion, do not apply to employees of banks who are governed by the provisions of the Banks (Efficiency & Discipline) Rules, 1975, framed by the Wage Commission, which do not contain any such requirement.

6. In regard to the first contention of Mr. Mamoon Kazi, the admitted facts are that though the respondent was in the grade of Senior Head Cashier, which post is in the officers grade, at the time that he was charge sheeted and action was taken against him, he was posted at the Fauji Sugar Mills Branch, Tando Muhammad Khan, and was the sole cashier at that branch. In his capacity as the sole cashier, he obviously must have been dealing with all the cash transactions at the bank which would involve not only the receipt and delivery of the cash at the banks counter, but the counting of the notes, both at the time of receipt and delivery and making necessary entries in regard to them in the cashier's register. These duties obviously involve manual and clerical work and hence notwithstanding the fact that the respondent was in the officer's grade, would be deemed to be workman for the purposes of the Standing Orders. In the recent case of Abdul Aziz v. Sind Labour Appellate Tribunal C. P. No. D‑204/81, decided on 11th March, 1982 a Division Bench of the Karachi High Court, while interpreting the words "manual and clerical work" for the purposes of the definition of workman in the Sind Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, observed as follows :‑

"We are inclined to hold that the. words "any manual" and work" employed in section 2 (i) of the Ordinance are susceptible to a very wide connotation, and‑, therefore, they will cover a person, who performs any manual work while discharging his duties irrespective of the quantum of such manual work, provided he belongs to a labour class. 1n our view the question, whether a person predominantly performs manual work or that manual work ' is incidental to his main work will be relevant when the question for consideration is, as to whether the person concerned falls within the category of worker or in a category which is excluded from being worker like in section 2 (xxviii) of the 1. R. O. ; the managerial staff or the person who supervises the work of others and draws monthly salary of Rs. 800 are excluded from the ambit of the definition of worker and workman given in the above provision. It may, be observed that when a Court is to determine whether a person falls within the category of a managerial stab' or within the category of worker and workman, in that event this question is to be determined with reference to the factum as to whether the person concerned predominently performs manual work or predominently performs managerial work. Similarly if a person falls in the class of Executive like a General Manager or an Executive in a company, in that event the mere fact that such a person uses his hands, which takes a fraction of the time of his working hours, will not make him a worker or workman within the ambit of either section 2 (i) of the Ordinance or 2 (xxviii) of the I.R.O."

Since the determining factor for deciding whether a person is or is not a workman, for the purposes of the Sind Industrial & Commercial Employ ment (Standing Orders) Ordinance, 1968, is not the designation or the host which he is holding but the nature of the work for which he is employ ed or required to perform or is actually performing, and since the respondent as shown above was performing the duties of cashier which duties involve mainly the performance of manual and clerical work, I would agree with, the view of the learned Labour Court that the respondent is deemed to be a workman for the purposes of the Standing Orders and was entitled to file and maintain a grievance petition under clause (3) of Standing Order 12f read with section 25‑A, I.R.O.

7. In support of his second contention that the Labour Courts have no jurisdiction in the matter of employees of banks, Mr. Mamoon Kazi relied upon the decision of a learned Single Judge of the Lahore High Court in the case of Allied Bank of Pakistan Ltd. v. Labour Appellate Tribunal, Punjab (1982 P L C 1). In that case exception was taken by the registered Staff Union of the Allied Bank, Sahiwal Zone, to a circular issued by the Bank to the managers of its branches and zones intimating them that promotion of clerical staff to officers' cadre, typists to steno‑typists and steno‑typists to stenographers respectively should be made after taking written tests and interviews of the eligible employees. Exception to the aforesaid circular was taken on the ground that the conditions of holding test and interviews imposed by the circular was illegal and inconsistent with paragraph 237 of the report of the Wage Commission which provided that promotion should be made on the basis of experience and length of service and over‑all performance of an employee. It was held by the Lahore High Court that the said paragraph, being mere statement of the principles which are to be kept in view by the employer while considering the case of promotion of its workers does not confer any right on the workers of the banks for the enforcement of which they sari approach the Labour Courts or the N.1.R.C. under the I.R.O. It was further pointed out in that judgment that the jurisdiction of the Labour Courts was also barred on account of the fact that the award of the Wage Commis sion is deemed to be an award of the N.I.R.C. under section 33‑D. 1. R. O., and hence only the N.I.R.C. would have jurisdiction in the matter as provided ‑k clause (a) of subsection (3) of section 22‑B, I.R.O. In the instant case no question arises of the enforcement of any provision of the Award of the Commission for Banks and Financial Institutions. It is not the grievance of the respondent that any right conferred on him by the Award of the Wage Commission had been infringed nor is he seeking enforcement of any right conferred by that award. I, therefore,‑ find no substance in this contention of the learned counsel of the appellant Bank. .

8. The next contention of the learned counsel for the appellant Bank was that admittedly the respondent was dismissed from service, vide office order, dated 10th April, 1980 and as the grievance of the respondent was in respect of his dismissal from service, he should have filed the grievance petition within 3 months of the order of dismissal, but the respondent failed to do so and served the grievance notice on 4th January, 1981 which was belated by almost 4 months. No doubt, the service of the grievance notice upon the employer is the foundation and a precondition for preferring a grievance petition to the Labour Court and furthermore such grievance notice is to be served on the employer within 3 months of the grievance having arisen, but we have to see in the instant case as to what is the grievance of the respondent and whether the respondent has or has not preferred the requisite grievance notice in time. It is an admitted position that under the rules of service applicable to the respon dent, he was entitled to prefer a departmental appeal. It is also not disputed that on 29th April, 1980 i.e. within 19 days of the issuance of the orders of his dismissal, the respondent did prefer a departmental appeal to the appellant Bank. This appeal, it appears, was not considered and even no intimation of its fate was given by the Bank to the respondent till 2nd . February, 1981 i.e. about a month after he had preferred his grievance petition to the Labour Court, when he was informed that his appeal had been withheld as it did not disclose new grounds to merit re‑consideration of the case. The grievance of the respondent thus was not only against the original order of dismissal, dated 10th April, 1980 but also in respect of the failure .of the bank authorities to take any action for a considerable period on his appeal, dated 29th April 1980. I am incline to the view that the respondent was entitled to wait for a reasonable time for a decision on his appeal before taking further proceedings in the matter. This is precisely what has been done by him. Looking to the fact that the Bank authorities took about 7Jj months to communicate their decision on the appeal preferred by the respondent, the respondent was entitled to wait for about 6 months before filing his petition on the ground that the Bank authorities either were not taking any action on his appeal or were not inclined to allow his appeal. The grievance of the respondent thus arose when he is reasonably deemed to have come to this conclusion after giving sufficient time to the bank to decide his appeal. I am fortified in my view by the decision of their Lordships of the Supreme Court in the case reported as Senior Vice‑President (G. M.), National Bank of Pakistan v. Muhammad Javed Khan and others (1981 P L C 542), In that case Muhammad Javed, who was employed as a junior clerk in the N.B.P., claimed that he was eligible for (a) ad hoc relief and (b) special pay benefits on the basis of certain circulars issued by the Bank authorities. As these benefits and reliefs were denied to him, he filed a grievance petition before a Labour Court which allowed the same. On appeal by the Bank, the decision of the Labour Court was reversed by the Labour Appellate Tribunal, Punjab, on the ground that the grievance notice by the petition was barred ‑by time. Muhammad Javed Khan then filed a Constitutional petition in which it‑ was held that the judgment of the learned P.L.A.T. was null and void. In the petition for Special Leave to the Supreme Court, it was first argued that the grievance petition was time barred. However, when it was pointed out to the learned counsel for the Bank that the grievance petition' had been filed within 2 months of the service of the grievance notice, it was contended that the grievance notice was belated as the representation of the employee for grant of relief and benefits was turned down on 18th December, 1974 while the grievance notice was served on the Bank on 18th July, 1975, much beyond period of 3 months prescribed for the service of such notice in subsection (1) of section 25‑A, I.R.O. Rejecting these contentions, the Supreme Court observ ed as follows :‑

"Learned counsel argued that a decision of the head office was communicated to the zonal office in Lahore vide letter dated 10th/ 18th December, 1974, whereby such employees as the respondent herein were held .as not eligible for the above‑mentioned claims. The aforesaid letter duly answered representation which on the subject had been made by the employee on 9th April, 1974. At that stage the employee sent a "grievance notice" dated 18th July, 1975, under section 25‑A of the Ordinance. He was informed on 1st August. 1975 that the matter was. under consideration and will be attended to in due course. The aforesaid letter dated 1st August, 1975 reads as follows ; ‑‑

'With reference to his I application dated 18th July, 1975, Mr. Muhammad Javid Khan, Junior Clerk, NBP/Z.O. Lahore is advised that his case is under our consideration and we shall advise him as soon as the decision is taken.' On 25th August, 1975 the employee filed. a petition in the Labour Court. It was Argued that it was filed after lapse of a period of 1 year and 8 months from the original refusal dated 10th December, 1974, and was therefore, time ‑barred when examined in the light of subsection (4) of section 25‑A of the Ordinance. The contention has no merit. The cause for approaching the Labour Court arose on 1st August, 1975 and the employee could file an application therein within a period of two months therefrom as stated in subsection (4) of section 25‑A. In this case his application filed on 25th August, 1975 was thus well‑within time. When confronted with this situation learned counsel submitted that what he really meant was that the grievance notice' sent on 18th July, 1975 was itself time‑barred inasmuch as it should have been sent within 2 months from 18th December, 1974 when the representation of the employee dated 9th April, 1974 was turned down. This plea also has no substance inasmuch as 'grievance notice' has to be sent 'within three months' of the day on which cause of such grievance arises. In the instant case the letter dated 18th December, 1974 (sometimes also described as 10th December, 1974), it appears was a sort of general advice by the Head Office to the Zonal Office (and not any direct com munication addressed to the employee). It is only when he learnt that his claim was not being accepted just on a general plea, he sent the requisite grievance notice which has not been shown to be time‑barred. Here it 'may be stated that in reply to the final grievance notice' sent by the employee he was never informed that it was being rejected as it was . out of date. Rather he was told that the matter was (still) under consideration. In the circumstances the pleas regarding any defect in the relevant 'grievance notice' on the ground of limitation cannot be accepted. The High Court held that it was a recurring cause of section and from that point of view notice was not time‑barred. We need not decide that aspect of the matter and leave it open for consideration in some appropriate cases and for the purpose of the present order it will be sufficient to hold that on the facts and in the circumstances above‑mentioned the grievance notice was not time‑barred with reference to the date mentioned above in detail. "

9. It may be pointed out that before the learned Labour Court no specific plea appears to have been raised that the grievance notice was barred by limitation and hence the grievance petition was not maintainable. Mr. Mamoon Kazi, the learned counsel for the appellant Bank, has argued that since proper service of the grievance notice is the very founda tion of the jurisdiction of a Labour Court to entertain a grievance petition, this issue may be raised at any time and he cited a number of authorities in support of his contention that objection to Jurisdiction of a Court or tribunal may be taken at any stage of proceedings, including at appellate stages. As this principle is well‑settled and finds support from the decision of the Supreme Court to the case of Rashid Ahmad v. The State (P L D 1972 S C 271) in which reliance was placed upon the decision of the Privy Council reported in P L D 1949 P C 45. I need net dilate upon this issue.

10. There remains the question what rules were applicable to the respondent and whether the application of those rules excludes or bars the application of Standing Orders or the jurisdiction of the Labour Courts. In considering this issue, the important factors to remember are that the respondent was charge‑sheeted on 16th February, 1978 in respect of charges relating to the period from 7th July, 1976 to 31st October, 1977 and that the was dismissed, vide office order, dated 10th April, 1980, while his departmental appeal was withheld as intimated to him, vide letter, dated 7th February, 1981. In the case of N.B.P. v. Nizamuddin Mehar (1980 P L C 1118), it was pointed out by this Tribunal that the National Bank of Pakistan Staff Service Rules, 1973, which were previously applicable to employees of the National Bank of Pakistan, stood superseded at the relevant time, by the Disciplinary and Efficiency Rules for Banks and Financial Institutions, 1975, and since these rules are not statutory rules but in the nature of an Award by the Commis sion as provided in section 38‑D, I.R.O., the employees of the National Bank of Pakistan were not exempted under the proviso to subsection (4) of section 1 of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, from the provisions of the Standing Orders. In the later case of Altaf Ahmed Shaikh v. National Rank of Pakistan (Appeal No. SUK‑33/82), decided on 17th March, 1982 the question was further considered as to which rules were applicable to employees of the N. B. P. and whether the application of those rules bars the jurisdiction of the Labour Courts. The facts in that case were somewhat similar to the facts of the present case. In that case Altaf Ahmad Shaikh, who was working as an Assistant in the Shikarpur Branch of the N.B.P. was suspended from service by an order, dated 10th May, 1977. The suspended period is said to have continued for 3 years. Altaf Ahmed Shaikh challenged the orders of his suspension before the Labour Court at Sukkur which held the suspension to be invalid. The respondent Bank preferred an appeal but it was unsuccessful. The National Bank of Pakistan there after on 15th June, 1980, served a charge‑sheet on Altaf Ahmed under the Efficiency and Discipline Rules for Banks and Financial Institutions in respect of acts said to have been committed by him between February, 1976 to February, 1977. However, this charge‑sheet was later withdrawn and a fresh show‑cause notice, dated 8th September, 1981 was issued against Altaf Ahmed under the N.B.P. (Staff) Service Rules, 1980. The new show cause‑notice contained the same allegations as in the earlier charge‑sheet. Altaf Ahmed submitted an explanation to this show‑cause notice but it was not found satisfactory and he was dismissed from service. by order, dated 18th October, 1981 Altaf Ahmed Sheikh then preferred an appeal to the President of the Bank' but he obtained no relief. He accordingly filed a grievance petition before the learned Labour Court. Reiterating its view taken in the case of Nizamuddin Mehar, it was held by this Tribunal that the application of the 1975 rules did not exclude the application of the Standing Orders and consequently the competence and the jurisdiction of the Labour Courts to deal with the individual grievance under clause (3) of Standing Order 12 read with section 25-A. I.R.O., was not affected. The mandatory requirement of clause (4) of Standing Order 15 is that if a workman is to be dismissed for an act of misconduct such act must be brought to the notice of the workman within one month of its commission or the act coming to the notice of the employer. In the instant case the respondent was charge‑sheeted on 16th February, 1978 for acts of misconduct said to have been committed by him in the years 1976 and .1977. The acts of misconduction which the dismissal of the respondent is based were thus not brought to his notice within the period provided in clause (4) of Standing Order 15. It was, however, contended by Mr. Kazi, the learned counsel for the appellant Bank, that the said provisions did not apply .to employees of the Bank by reason of this overriding effect which the Efficiency and Discipline Rules of 1975 have under section 38‑1, I.R.O. The said section, however, does not make other laws in applicable to workers whose terms and conditions have been fixed by the Wage Commission under the I.R.O. but provides that the provisions of sections 38‑A to 38‑B shall have effect notwithstand ing any thing therewith contained in any other law. At best, therefore, is there be any inconsistency between the Efficiency and Discipline Rules for Banks and Financial Institutions, 1975, and the Standing Orders, the latter to the extent of the inconsistency would give way: I, however, find no inconsistency between the said rules and the provision contained in Standing Order 15 (4) requiring the bringing of misconduct to the notice of the workman within one month. From the mere fact that the rules of 1975 do not contain any provision in this behalf no inconsistency can be presumed (see A. Javed v. N. I.R.C. (P L D 1978 Kar. 64). I am, therefore; of opinion that the dismissal of the respondent cannot be upheld as the charges on which the dismissal is based were not brought to his notice within the period prescribed in Standing Order 15 (4).

11. It may further be pointed out that the enquiry conducted by the Assistant Vice‑President was in fact not an enquiry at all. It appears to have been confined merely to the recording of the statement of the respondent in question and answer form. In that statement the respondent strongly denied the allegations made against him. The enquiry, officer neither examined any witness nor he seems to have submitted any report.

12. The upshot of the above discussion is that I Would agree with the view of the learned Labour Court that the dismissal orders. in respect of the respondent are invalid and must be set aside. However, I am not inclined to award any back benefits to the respondent as he is ,;being re‑instated solely on the ground that the charges against him for purpose of dismissal are barred by clause (4) of Standing Order 15 and that further no proper enquiry has been held against him. With this modifica tion, I would dismiss this appeal. The back benefits deposited by the appellant Bank are ordered to be refunded to it.

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