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(a) Industrial Relations Ordinance (XXIII of 1969)-----

-----S. 25‑A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i) Security Guard in Bank‑No evidence of any manual or clerical duties‑Not a workman as defined in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑-Cannot maintain grievance petition under S. 25‑A of Industrial Relations Ordinance, 1969.

1982 P L C 323 ; 1982 PLC 215 ; 1981 C L C 1055 ; 1983 PLC 509 ; 1982 PLC 226; 1980 PLC 72,2 ; 1979 PLC 196 ; 1979 P L C 415 ; 1978 P L C (C. S.) 237 ;P L D 1978 Kar. 649 ; 1977 S C M R 103 and P L D 1975 Kar. 274 rel.

1982 PLC 61 ; 1982 PLC 137;1982 PLC 132;1982 PLC 371; 1982 P L C 903 ; 1975 P L C 34 and 1983 P L C 550 ref.

(b) Industrial dispute‑---

----Domestic enquiry‑Irregularity‑Not causing material pre judice to accused in his defence‑Will not vitiate ultimate dismissal order‑Nominee of accused not allowed for direct cross‑examina tion‑Enquiry proceedings found to have caused no material prejudice to accused in his defence‑Objection on such irregularity, in circumstances repelled.

PLD 1981 SC 176rel.

Wasiullah Qureshi for Applicant.

M. Bashir Awan for Respondents.

This application under section 25/A of I.R.O., 1969 has been filed by applicant Ramzan Khan challenging the order of dismissal from service and has prayed for re‑instatement and back benefits.

The applicant was admittedly in the employment of respondent Bank and was dismissed from service vide order, dated 20th October, 1982 copy Exh. A/1. On 30th May, 1982 the applicant was charge -sheeted copy Exh. R/2, to which the applicant replied and denied the allegations. Consequently the management held an enquiry in which the applicant participated. On the basis of such enquiry the applicant was dismissed from service. He preferred a departmental appeal which was followed by the grievance notice, to which the respondent‑Bank did not responded. Hence this application.

The respondent‑Bank filed the reply statement and denied the alle gations of the applicant. Maintainability of the application and juris diction of this Court has also been challenged.

Parties adduced their evidence and filed written arguments which I have gone through and also the proceedings of the case.

Now the points for consideration are (i) whether the applicant is competent to maintain the grievance petition ; (ii) whether on merits the applicant is entitled to any relief.

My finding thereon is in the negative for the following reasons :‑

Mr. Bashir Awan, the learned counsel for the respondents contended that since the applicant was serving as Security Guard in the respondent Bank, as such be is not a workman within the meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and consequently not competent to maintain his grievance petition under section 25‑A of I.R.O. 1969. He referred me to the documents copies Exhs. R/4, R/5 and R/6, contents of which were admitted by the applicant in his cross‑examination, which show that the applicant was serving as Security Guard in the respondent‑Bank. He also referred me to cross‑examination of the applicant, in which he admitted that:

" In 1980 1 was recruited as Guard in respondent Muslim 'Com mercial Bank. I remained in the Zonal Office as Guard. I was transferred from Zonal Office to the Goodsnaka Branch of res pondent‑Bank. I was given releaving order. It is produced as R/4."

The contention of Mr. Awan was that the respondents categorically denied in the reply statement that the applicant was performing any manual or clerical duties, except that of Security Guard, therefore, the burden was upon the applicant to prove his assertions that he was per forming the manual or clerical duties. In support of his contention he cited 1982 P L C 323, 1982 P L C 215 and 1981 C L C 1055, wherein it has been held that "burden of proof lies upon the person making the claim that he was a "workman" under the Standing Orders Ordinance, 1968.

The applicant has failed to lead any evidence to prove that he was performing the duties of Peon and not of Guard. Mr. Awan further cited 1983 P L C 509, 1982 P L C 216, 1982 P L C 226, 1980 P L C 722, 1979 P L C 196, 1979 P L C 416, P L D 1978 S C 237, P L D 1978 Kar. 649, 1977 S C M R 103 and P L D 1975 Kar. 274 and contended that in all these authorities it has been held that a non‑worker Chowkidar/ Security‑Guard cannot maintain his grievance petition under section 25‑A of I.R.O., 1969. He has also brought on record a copy of the order passed on 7th April, 1983 in Appeal No. Hyd. 83, whereby the Sind Labour Appellate Tribunal, has maintained the order of this Court that a Bank Guard cannot maintain his grievance petition under section 25‑A of I.R.O, 1969.

Mr. Wasiullah Qureshi, the learned Advocate for the applicant cited 1982 P L C 61, 137, 132, 371, 903, 1975 P L C 34 and 1983 P L C 550 and contended that "whether or not an employee was a workman" determining factors were nature of duties and not the designation". I agree with the contention of Mr. Wasiullah Qureshi, but unfortunately the applicant g did not lead any evidence that although he was designated /employed as "Security Guard" he was doing any manual work. On the contrary the documents on record and admission of the applicant itself proves that he was only a Security Guard.

I, therefore, hold that the applicant has failed to prove himself as workman which disentitle him to maintain his grievance petition before this Court.

On merits Mr. Awan submitted that in para. 6 of his grievance appli cation, the applicant asserted that main cause of quarrel with Bank Officer Mr. Akhtar Pathan was over the demand of uniform, but in his cross‑examination the applicant admitted that "my quarrel with Akhtar Pathan was not due to uniform". Mr. Awan further submitted that fair and impartial enquiry was conducted in which the applicant participated and was given full opportunity of defence. The respondent‑Bank found the applicant guilty of disorderly behaviour and has rightly been dismissed front service, which is legal and justified.

He further contended that even if for the arguments sake it is admitt ed that some irregularities, had occurred in conducting the enquiry, it will not vitiate the dismissal order. To substantiate his arguments, be cited P L D 1981 S C 176, in which it has been held:

" If an omission, defect or irregularity in the conduct of the enquiry has not caused material prejudice to the accused official in the w matter, of defence, then such an irregularity, omission, or defect would not by itself vitiate the action taken against him."

With regard to the plea of the learned counsel for the applicant that the nominee of the applicant was not allowed for direct cross‑examination. I have gone through the enquiry proceedings and find that no material prejudice was caused to the applicant in his defence, even if he was in directly allowed cross‑examination.

In the result I find no fault with the order of dismissal passed by the respondents against him. Consequently his application is dismissed.

A. E. Petition dismissed.

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