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Writ Petition No. 269 of 1977, decided on 11th April, 1979.

West Pakistan

‑‑ Ss. 2 (i) & 2 (c) (iii) "Workman"‑Manager of a branch of Bank‑Not responsible. only to owner' and not supervising and controlling entire establishment‑Supervising only a Bench‑No power to appoint or dismiss nor could charge‑sheet or grant leave to any employee.‑ Person performing duties clerical‑cum‑supervisory,. held, "workman"‑Entitled to seek remedy .against termination of service by grievance petition before Labour Court‑Industrial Rela tions Ordnance (XXIII of 196,9), S. 25‑A‑‑Constitution of Pakistan (1973), Art. 199.

Muhammad Moinul Islam v. Opal Laboratories 1979 P L C 131 Muhammad Aqil v. Chairman. Sind Labour Appellate Tribunal and another 1974 P L C 194 ; Muhammad Aqrl v. Sind Labour Appellate Tribunal and another P L D 1978 Kar. 649 ; Tarbela Joint Venture through Major C. J. Biggs, Personnel Manager & Chief Camp Commandant v. Labour Appellate Tribunal. N.‑W.F.P. and 2 others P L D 1975 Pesh. 240 ; Medical Educational Uplift Fund Association of Seventh Day Adventists in Pakistan v. Vth Sind Labour Court, Karachi and 2 others P L D 1978 Kar. 536 ; Dost Muhammad ‑ Cotton Mills Ltd. Karachi v Muhammad Abdul Ghani and another P' L D 1975 Kar. 342 ref.

Dost Muhammad Cotton Mills Ltd. v, Muhammad Abdul Ghani and another 1979 S C M R 304 rel.

Nisar Ahmad for Petitioner.

Jalaluddin Akbarji for Respondent.

S. Ibne Ali, Addl. A.‑G. for the State.

Date of hearing : 6th March, 1979.

This petition under Article 199 ‑of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by Allied Bank of Pakistan Limited, challenging the order of the learned Labour Court dated 13th September, 1976, and that of the Chairman of the' Labour Appellate Tribunal dated 18th . March, 1977, whereby respondent No. 1; Muhammad .Humayun Khan, was held to be a workman and re‑instated in the service of the petitioner. .

2. The facts which are stated in the petition are that the petitioner is a Banking ‑ Company which is governed by the Banks (Nationalisation) Act, 1974, with registered office at Lahore: Respondent No. 1 was an officer in Sarhad Bank Limited, which merged into new organisation, known as Allied Bank of. Pakistan Limited and in November, 1972 respondent No. 1 was posted as Manager, Batkhela branch of the Sarhad Bank Limited, where he was working upto August, 1973, when he was charge‑sheeted for misconduct ; that an inquiry was held in the matter and respondent No. 1 was held guilty and removed from service on 30th. October, 1975. There after, he filed a grievance petition under section 25‑A of the Industrial Relations Ordinance before respondent No. 2, which was accepted on 13th September, 1976 and the respondent No. 1 yeas granted a relief of reinstate ment. An appeal was filed against this order before the Labour, Appellate Tribunal which was also dismissed on 18th March, 1977. It was held by the learned Labour Appellate Tribunal that respondent No. 1 was a workman and could maintain a petition before the Labour Court.

3. Learned counsel for the petitioner contended that respondent No. 1 being the Manager, incharge of the branch of a Bank, was exercising control and supervision of the other staff and was also invested with powers through a Power, of Attorney which was executed in his favour by the Bank. Thus 'the. argument is that respondent No. 1 ‑ was not a "workman" as his duties entailed the responsibility; initiative as he was entrusted duties of managing the petitioners' branch at Batkbela. In support of his contention the learned counsel placed on record a judgment of the Supreme Court "Civil Petition for Special Leave to Appeal No. K‑89 of 1975" Salahuddin Masood v. Pakistan and 3 others decided on 12th August, 1975. The learned counsel also cited Muhammad Moinul Islam v. Opal Laboratories (1979 {P L C 131), in which it was held that the first ground which was relied by the Labour Court was that the appellant was a sale man therefore,, not a .workman, with the result that the application was not maintainable. This view was based on the definition of the terra "workman" provided by the West Pakistan (Standing Orders) Ordinance. .It was held further 'that until recently this view prevailed but it was altered and must be deemed to have been set at rest by the unreported decision 'of the Supreme Court in Civil Appeal No. Kar. 19 of 1976, Shahzad Khan v. Sind Labour Court and others, to which it was clearly laid down that the definition as provided by Standing Orders Ordinance could not be taken under consideration but any person who was a workman as defined by Industrial Relations Ordinance could have recourse to the provi sions of section 25‑A, I. R. O.

The next point which the‑learned counsel canvassed is that even if a person who is entrusted with the sole management of a branch of an establishment, and in this case Bank, will not be excluded from the definition of an employer, which point had prevailed with the learned Labour Appellate Tribunal and reliance is placed on two authorities, Muhammad Aqil v. .Chairman; Sind Labour Appellate Tribunal and another (1974 P L C 194) and Muhammad Aqil v. Sind Labour Appellate Tribunal and another (P L D 1978 Kar. 649.).

4. Learned counsel for respondent No. 1 canvassed the factual position asserting that respondent No.. 1 was appointed as an officer in Sarhad Bank Limited in 1970 ; then in November, 1972 he was designated as Manager, Batkhela branch of Sarhad Bank Limited ; thereafter he was transferred to D. I. Khan as an Office: in September," 1973_ and then to a Branch at Mardan in December, 1973. ‑And at the time when he was served with a charge‑sheet, he was not a manager, though he was manager at the relevant time when the alleged misconduct was committed. Regarding the definition of the "workman" he contended that the definition which is to be followed and has been followed by other Labour Tribunals in this Province is one that is given in the West Pakistan Ordinance No: VI of 1968,, and relied on‑ Tarbela Joint Venture through Major C. J. Biggs, Personnel Manager and Chief Camp Commandant v. Labour Appellate 'Tribunal, N.‑W.F.P. and 2 others (P L D 1975 Pesh. 240). He further cited Medical‑Educational Uplift Fend Association of Seventh Day Advertises in Pakistan ‑v. Vth Sind Labour Court, Karachi and 2 others (P L D 1978 Kar. 536). He argued that‑Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another (P L D 1975 Kar. 342), is an authority which has been approved by the Supreme Court of Pakistan in a case reported in Dost Muhammad Cotton Hills Ltd, v, Muhammad Abdul Ghani and another (197S 'C M R 304).

5. In this reported case their Lordships observed that two points were raised firstly, that the‑respondent‑was not a workman within 'the definition given in the Standing Orders Ordinance, 1968 and, secondly that this was a case of termination of service and not of dismissal, anti h quote the dictim laid down by their Lordships in their own words, "we can find no reason to take any legitimate exception to the findings of the .High Court on the first two points, viz. as to whether the respondent was a workman within the definition of the Standing Orders Ordinance and whether the. order amoun ted to an order of dismissal. We have examined the chart of duties of the respondent. It is also clear from the statement in his affidavit that he had no supervisory functions at all after he was asked to act on the instructions from Mr. Fareed Khan". In the light of these observations, we refer to the statement of respondent, Muhammad Humayun, wherein, he had stated, 111 had no power as Manager to appoint or dismiss any employee. I could neither issue a charge‑sheet, nor to grant leave to any employee, I could not spend any money: As a Manager the nature of work of duty was clerical- cum‑supervisory, In September, 1973, 1 was transferred from Batkhela to D. 1. K. branch and was posted there as second officer. The post of Manager and Second Officer are transferable and their duties are the same.

6. In the unreported case (Salahuddin Masood v. Pakistan and 3 others) their Lordships made a clear demarcation between the definition of workman in the West Pakistan Industrial and‑ Commercial Establishment (Standing Orders) Ordinance of 1968 and in the Industrial Relations Ordinance, 1969. In the first mentioned Ordinance "workman" has been defined in S. 2 (i) in the following words :‑

" . . means any persons employed in any industrial or commercial establishment to do. any skilled or unskilled, manual or clerical (work) for hire or reward."

The word "work" has been substituted for the original word "labour" by Act V of 1972, whereas "employer" has been defined in clause (c) (iii) of sec tion 2 of the Ordinance, which says " . . . . . means id any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment". Whereas in the second Ordinance (Industrial Relations Ordinance, 1969) the "employer" has been defined as under:

" any person responsible for 'the management, supervision and control of the establishment."

"Establishment" has been defined is the words "any office, firm, industrial unit, undertaking. shop or .premises in which workmen are employed . for the purpose of carrying on any (industry)", while in the Standing Orders Ordinance, S. 2 (c), clause (iii) is to be attracted. It, is necessary to show that a paid servant falls within the category of "employer" who would be responsible only to the owner and should supervise and control the entire establishment. If any of the two qualifications are found wanting, such person will not fall within the definition of "employer" but will have to be considered as a workman and he is to be shown to occupy position of supervision or control the entire establishment 'and not only a branch or department of that establishment and for such reasons could not be said to be covered by the definition of "employer as stated in section 2 (c) (iii) of the Standing Orders Ordinance. Therefore, we hold that the respondent was, a "workman" and not within the definition of "employer' as it cover whose who employ workmen under a contract of employment, in an "establishment" as defined in clause (ix) of the 'Industrial Relation Ordinance.

7. The upshot of the above discussion is that the petition fails and. is hereby dismissed with no orders as to costs.

Petition dismissed.

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