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Appeal No. S(3‑16 of 1984, decided on 5th December, 1984.

--‑Ss. 2 (xxviii) & 25‑A‑Words "is employed" in S. 2 (xxviii)‑ Do not mean that only those employees are "workmen" who are in service‑Plea that dismissed or terminated workman cannot invoke provision of S. 25‑A‑Rejected.

--Ss. 25‑A & 38‑D‑Dismissal from service of Bank employee --Allegedly against right guaranteed by Wage Commission Award --Grievance petition‑Maintainable.

A. R. Sheikh for Appellant.

Mian Abdul Latif for Respondent.

Date of hearing : 28th November, 1984.

The appeal captioned above ‑challenges the decision, dated 20th December, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 5, Faisalabad, whereby the respondent was directed to be re instated in service with back benefits.

2. The allegations against the respondent were two folds namely that he had received an amount of Rs. 4,400 on 10th August, 1980 for being credited in Account No. 490 but neither it was credited in that account nor in miscellaneous account. When the account holder complained' of it, it was credited by the respondent in the account of that party on 29th November, 1980 ; and that the Manager entrusted Rs, 300 to the respondent in the beginning of September, 1980 for being credited in the account of one Muhammad Nawaz but he kept the amount with .him upto 28th December, 1980 and he neither deposited it in the account of the said account holder' nor in the miscellaneous account. The respondent took up the plea .of illness for non‑crediting the amount.

3. It has been argued that the respondent had been wrongly adjudged as workman. But there is no evidence that the respondent had super visory capacity. Duty Roster Exh. R. 4 does not contain any such duty. R. W. 1 also did not say so. He rather said that he used to take work from the cashier, assistant and two non‑clerical staff and that in his absence the respondent used to take work from them. It is thus clear that R:W. 1 was the supervisor.

4. Since the respondent had taken up certain pleas in his explana tion, he was to be afforded opportunity to prove the same. But no opportunity was given. It is evident from the enquiry proceedings that after the statement of the representative of the appellant was recorded, the enquiry was closed without adjourning the case for defence. The statement of the Enquiry Officer is not believable that the respondent had said that without waiting for his defence witnesses the enquiry be closed. No such statement of the respondent can be found in the enquiry proceedings. Since, as stated by the Enquiry Officer, the respondent wanted to examine a witness in defence, the enquiry should have been adjourned when the said witness was on leave on that day.

5. No evidence to prove the charge was produced. The representative of the appellant came in the witness‑box and narrated the charges only. No books and other documents were produced.

6. It has been argued that the respondent being a dismissed person was out of the definition of workman and thus could not file petition under section 25‑A. I have held in many banks' cases that the words is employed' used in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 do not mean that only those employees are workmen who are: in service. The provision that only those persons from whose dismissal an industrial dispute has been raised or who have been dismissed on account of an industrial dispute are workmen, is meant for such other persons who are not covered by the definition such as (sic) Supervisors, etc. This is noteworthy that not only in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 but in other enactments also wherever a Worker or workman, employee or servant has .been defined present tense bas been stated. If it is said that dismissed or terminated persons cannot invoke as the, provisions of section 25‑A of the Industrial Relations Ordinance, 1969, it was not necessary to promulgate Labour Laws an (sic) constitute special Labour Tribunals because remedy by way of coming damages for wrongful dismissal or termination was already available i.e. ordinary civil Courts.

7. This argument is also not tenable that the respondent had not right guaranteed by any law, award or settlement. Wage. Commission Award is enforceable under section 38‑D of the Industrial Relations Ordinance, 1969 and. on its basis an. application under section 25‑A is competent.

8. It has also been argued by the learned counsel for the respondent that charge‑sheet and enquiry notice. were issued and dismissal order was‑ passed by incompetent. authorities. So far as dismissal order is concerned, no such plea can be found in the grievance petition. So far as issuance .of charge‑sheet and appointing of Enquiry Officer is concerned, nothing can be said as no copy of the rules was pro duced in support of the objection.

9. As a result, the appeal fails and is dismissed.

A.E.

Appeal dismissed.

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