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Appeal No. SUK-144 of 1983, decided on the 14th May, 1984.

---S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i) Bank employee Officer Grade III failing to prove that by virtue of nature; of duties on relevant time to which allegations against him related he was a workman as defined in S. 2 (i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968-Version of Bank consistently right from reply state ment till affidavit in evidence before Labour Court that petitioner wars working as an Accountant a Principal Officer having power-of attorney with supervisory and managerial powers-Grievance petition against dismissal from service, in circumstances, held, rightly dismissed by Labour Court as not maintainable.

M. L. Shahani for Appellant.

Date of hearing: 2nd May, 1984.

This appeal directed against the order, dated 24th March, 1983 passed by the Sind Labour Court No. VII at Sukkur, dismissing the appellant's application filed under section 25-A, I. R. O. 1969 as not maintainable.

2. The facts heading up to the appeal briefly stated are that the appellant was appointed as Officer Grade III on 15th July, 1971 by the respondent-Bank. He is alleged to have introduced a fake account in the name of one Nizamuddin which was being operated by one Mehrab Ojhan, the Manager of the National Bank of Pakistan, Shikarpur Branch and by manipulating the record facilitated the fraud resulting in a loss to the respondent-Bank to the tune of Rs. 14,07,500. He was charge-sheeted and the charges having been established against him he was dismissed from service, vide dismissal order, dated 14th February, 1982. He preferred a departmental appeal and having received no reply to it, he served a grievance notice, dated 11th May, 1982, on the respondent. His grievance having not been redressed he filed an application under section 25-A, I.R.O., 1969 against the respondents before the learned Labour Court at Sukkur. The application was resisted by the respondents on merits as well as on the ground that the appellant was not a workman within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968 and, therefore, the application was not legally maintainable. The learned Labour Court recorded evidence adduced by the parties. The appellant examined himself whereas the respondent examined their officer, Muhammad lqbal Siddiqi in support of their respective contentions. The learned Labour Court finding that the appellant had failed to prove that he was a workman, dismissed his application as non-maintainable. Aggrieved by this order the appellant has come in this appeal.

3. I have perused all the evidence adduced by the parties before the learned Labour Court and have also heard Mr. M. L. Shahani, the learned counsel for the appellant, and Mr. Mahmood Abdul Ghani, the learned representative for the respondents. The sole question that would arise for determination in this appeal is as to whether the appellant is a workman within the meaning of section 2 (i) of the Standing Orders Ordinance, 1969 or not. It is true that the burden of proof that he is a workman would lie upon the appellant himself. It is also true that to determine as to whether he was a workman within the meaning of section 2 (i) of the Standing Orders, the nature of the duties on which he was employed at the relevant time to which the allegations against him relate had to be looked into. It is also true that the real test to determine as to whether an employee was a workman or not within the meaning of section 2 (i) of A the Standing Orders is to look into direct, immediate and the substantial part of the work for which he was employed and not to the sundry duties incidentally performed by him. The true answer to all these questions would depend upon the proved facts on the evidence that has been adduced by the parties before the learned Labour Court. On examining the evidence, I find that the appellant right up from the beginning when he served a grievance notice on the respondent till he filed an affidavit in evidence Exh. 3, claimed to be an Officer Grade-111 as he was appointed as such and was subsequently confirmed in that post. This appears to be his claim in his grievance notice, dated 11^th May, 1982 Exh. 1-C, his reply to the letter of charges, dated 11th November, 1981 Exh. I-D, his grievance application, dated 20th June, 1982 Exh. I and his affidavit in evidence, dated 6th October, 1982 Exh. 3 available in evidence in lower Court record. In none of these documents anywhere he claimed to be either a workman or performing skilled or unskilled, manual or clerical duties as officer of the bank. It was for the first time in an additional affidavit filed by him subsequently on 12th December, 1982, it appears on a second thought and on a better advice that he claimed that he was a workman performing duties substantially clerical in nature having no supervisory or managerial powers at the relevant time. According to him he used to perform the duties of posting cheques in the Ledgers apart performing duties at the Counter. According to him further, he used to type as well as used to prepare periodical statements and such other jobs generally done by the clerical staff. Mr. Shahani the learned counsel for the appellant has contended that his version in additional affidavit to that effect has not been challenged in the cross-examination but his contention does not seem to have any force as the trend of cross-examination would clearly suggest that the contention raised by the appellant for the first time in his additional evidence was substantially challenged. However, the respondents' case was consistent right up from his reply statement till the affidavit in evidence was filed that the appellant was not a workman and was working as an Accountant, a Principal Officer of the bank having a power-of-attorney and supervisory and managerial powers. In the situation, the appellant should have examined a corroborative evidence in support of his solitary version that the nature of duties he was performing were predominantly clerical and not supervisory or managerial or incidental to his normal duties as an officer. He could have conveniently called the oral as well as documentary evidence available in the respondent-Bank in support of his contention that the nature of duties he had enumerated in his additional affidavit and he was performing at the relevant time, direct, immediate and substantial were clerical and not supervisory or managerial or incidental to his main job as an officer. On the contrary, in his affidavit in evidence he denied that he was working as an Accountant. He asserted that though employed as an officer he was doing clerical duties. In his affidavit in evidence Muhammad Iqbal Siddiqi an officer of the respondent has categorically stated that the nature of duties which were being performed by the appellant were not clerical as he was an officer Grade-III performing supervisory and managerial job as Principal officer of the respondent-Bank. His version in that respect does not appear to have been substantially challenged. There is also no sufficient and satisfactory evidence on the record that the nature of duties which the appellant was performing were mainly clerical. In the circumstances, the learned Labour Court rightly observed that the appellant's belated claim that he was performing duties of electrical nature was afterthought and un reliable. Accordingly, it is clear to me that the appellant has miserably failed to discharge the burden of proof which lay on him to establish that he was a workman within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968. The grievance application filed by him, there fore, was clearly not maintainable. The impugned order passed by the learned Labour Court would, therefore, not call for interference.

4. The result is that the appeal is dismissed.

A. B.

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