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Appeal No. KAR‑444 of 1981, decided on 9th December, 1981.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑S. 2(i)‑‑"Workman"‑‑Whether or not an employee a workman‑‑Nature of duties and not designation‑‑Material to determine status‑‑Bank employee Class III Officer in Audit Section of Computer Division‑ Responsible to collect Instructions and Flow Charts essentially a work of clerical/manual nature‑‑Given no problem to find out a solution‑‑A workman.

‑‑‑ Domestic enquiry‑‑Person signing charge sheet, letter of appointment of Enquiry Officer under instructions of Management which in fact took decision of formally charge‑sheeting accused and holding of enquiry‑ Appearing of such person as prosecution witness, held, would not invalidate domestic enquiry.

‑‑‑ Dismissal for misconduct‑‑Multiple charges (i) refusal to obey orders of superior, and (ii) using objectionable language and making false allegations against superiors‑‑Charge of refusal to obey order not specific and cumulative effect of circumstances indicative that alleged wilful disobedience of orders of superior or to follow any specified reasonable instructions not established‑‑Dismissal order passed on basis of both charges, in circumstances, held, not sustainable‑‑Impugned dismissal order, in circumstances, set aside by Labour Appellate Tribunal awarding re‑instatement to appellant and leaving it open for employer to consider case in respect of second charge‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3).

Niaz Ahmed v. Asbestos Cement Industries Limited 1983 P L C 542 and Islamabad Club v. Punjab Labour Appellate Tribunal P L D 1980 S C 307 rel.

S.P. Lodhi for Appellant. Mahmood A. Ghani for Respondent

This appeal is directed against the decision of the learned Vth Labour Court, given on 29‑7‑1981, dismissing the appellant's grievance petition made under section 25‑A, I. R.O. against his dismissal from service by the Muslim Commercial Bank Ltd., the respondent herein.

2. The facts which have given rise to this appeal, shortly stated, are that the appellant was taken up in employment by the respondent herein, by the latter's letter, dated 22‑11‑1976, as Class III Officer and was posted as a Programmer in the Computor Division. The appellant continued to perform his duties in the Computor Division of the respondent‑Bank till 1979, when he was deputed for training facilities sponsored by the respondent‑Bank through the I.B.M. On completion of his training, the appellant was posted in the Internal Audit Section of the Computor Division, vide letter, dated 3‑12‑1979 and he was asked to report to Mr. Younus Umar Khanani, Deputy Controller, in the respondent‑Bank. It appears that later assigned the appellant the job of completing Operating Instruction and Flow Charts of the various programmer of the various systems being run in the Computor Room, but no specific order in writing as to the nature of duties assigned to him has come on record. By this letter, dated 22‑12‑1979, addressed to Mr. Abdul Sattar, Deputy Controller (Operations), with copies to Mr. Younus Umar Khanani and Mr. Abdul Ghaffar, A. Sattar, Vice‑President, for information, the appellant intimated that he had handed over to Mr. Abdul Sattar the Operating Instructions and Flow Charts of all the systems in operation and requested that they may be checked and he be advised if there is any omission. There appears to have been no reply to the appellant to the above letter. However, on 2‑1‑‑1980, Mr. Younus Umar Khanani wrote a letter to Mr. S.M.H. Rizvi, Senior Vice‑President, complaining that the appellant had been working on the job of documentation of systems and programming, but he has now refused to follow his (Mr. Younus Khanani's) instructions and, therefore, necessary action may be taken against him, Mr. Younus Khanani followed up the above letter with another letter, dated 3‑1‑1980, to Mr. Rizvi, complaining that on 2‑1‑1980, the appellant had wilfully disobeyed his orders, and refused to work and walked away in a naughty manner. It may be pointed out that both these letters are written on plain lined paper, without any mark of the bank and bearing no number or indication of the officer from which the letters had been issued. On the basis of these letters, the Senior Vice‑President, Mr. Rizvi, wrote to the appellant on 5‑1‑1980, drawing his attention to his refusal to follow the instructions of Mr. Younus Khanani which he termed as a very serious offence, and required him to submit him explanation by the following day as to why disciplinary action should not be taken against him. The appellant submitted his explanation to the above show‑cause notice by his letter, dated 6‑1‑1980. He also, on 8‑1‑1980, addressed a letter to the President of the respondent‑Bank asserting that the Vice‑President, Mr. Rizvi, had sent for him and had tried to persuade him to withdraw his explanation, dated 6‑1‑1980, but the appellant found himself unable to do so and his refusal has evidently earned him the displeasure of the Senior Vice‑President. On the same day, when the appellant wrote the above letter to the President of the respondent‑Bank, the Senior Vice‑President, Mr. Rizvi, wrote a letter to‑ the appellant attempting to explain to him the working of the Internal Audit in the Computor Division and purporting to clear up the misunderstanding existing in the mind of the appellant about the functions and the working of the Internal Audit Section. The appellant, by his letter, dated 12‑1‑1980, made a reply to the said letter of Senior Vice‑President wherein he inter alia took exception to his being addressed without his designation. A copy of this reply was also forwarded by the appellant to the President of the respondent‑Bank. On 19‑1‑1980, a formal letter of charge was issued to the appellant. The said letter of charge contained two separate charges. The first charge being that on 2‑1‑1980, he had wilfully disobeyed the orders of his immediate superior Mr. Younas Umer Khanani and since then he had not been taking any interest in his work, and the second charge being that in his letter, dated 6‑1‑1980 and 12‑1‑1980, addressed to the Senior Vice‑President, Computor Division, and also in his letter, dated 9‑1‑1980, addressed to the President of the respondent‑Bank, he had used objectionable language and had made false allegations against the Senior Vice‑President, Computor Division. By the said letter, the appellant was placed under suspension. It may be pertinent to note here that this letter of charge was issued by the Senior Vice‑President, Mr. Rizvi. The appellant, by his letter, dated 21‑1‑1980, made a long reply to the aforesaid letter of charge alleging that the allegations against him were unfounded and made with an ulterior motive. He also alleged in his reply that no details of the acts on which the charge was founded had been mentioned or specified in the letter of charge. The respondent‑Bank, by its letter, dated 28/29‑1‑1980, under the signature of Senior Vice‑President, Mr. Rizvi, furnished to the appellant details of the acts on which the letter of charge, dated 19‑1‑1980, was founded. The appellant by his letter, dated 3‑1‑1980, again submitted a long explanation in respect of the details of acts on which the charge against him were founded, but as his explanation was not found satisfactory, a letter of enquiry, dated 3‑2‑1980, was issued by the Senior Vice‑President, Mr. Rizvi, through which the appellant was informed that it had been decided to hold an enquiry against him on 6‑2‑1980, and that Mr. Khawaja Khalid Ahmed, Deputy Controller, Personnel Division, had been appointed as an Enquiry Officer. The enquiry proceeded on 6th and 7th February, 1980 and on behalf of the Bank, the Senior Vice‑President, Mr. Rizvi, Mr. Younus, Umar Khanani and Mr. Haroon A. Sattar, Grade Officers, Computor Division, and Mr. Abu Bakar, Deputy Controlled, Computor Division, were examined, while no witness in defence was examined by the appellant. The Enquiry Officer by his report, dated 14‑2‑1980, held both the charges, namely, of refusing to obey the orders of his superior and of using objectionable language and making false allegations against his superior, Mr. Rizvi, to be established against the appellant. A second show‑cause notice was accordingly issued to the appellant to which photostat copies of the enquiry report and the enquiry proceedings were appended. As the explanation of the appellant to the said second show‑cause notice was not found satisfactory by the respondent‑Bank, he was dismissed from service, vide letter, dated 27‑2‑1980.

3. The appellant challenged the orders of his dismissal through a grievance petition filed before the learned Vth Labour Court. The grievance petition was resisted by the respondent‑Bank on the grounds, firstly, that the grievance petition was not maintainable as the appellant was an officer of the bank and not a workman and hence not entitled to file a grievance petition before a Labour Court, and secondly, that the charges of misconduct against the appellant had been duly established in a domestic enquiry which was fairly and properly conducted and in which full opportunity of defence was given to the appellant. The learned Labour Court repelled the first contention of the respondent‑Bank and held, on a careful examination of the evidence led in this behalf, that the appellant, though designated as an officer was employed to do work of a clerical nature and accordingly came within the definition of 'workman' for the purpose of the Standing Orders and was thus entitled to file and maintain a grievance petition. It, however, agreed with the second contention of the respondent‑Bank and has held that the misconduct of the appellant had been duly established. It has accordingly dismissed the grievance petition of the appellant, who has now come up in appeal to this Tribunal. The respondent‑Bank has also filed cross objections to the finding of the learned Labour Court that the appellant is a workman for the purpose of the Standing Orders.

4. I would first deal with the cross‑objections of the respondent‑Bank that the appellant is not a workman for the purposes of the Standing Orders and hence, not entitled to file a grievance petition against the termination of his services. It is not disputed that the appellant was appointed as Grade‑III officer in the respondent‑Bank and was posted as a Programmer. He had also undergone training sponsored by the respondent‑Bank through the I.B.M. in A.N.S. Cobol and R.P.G.‑2 in 1979. The duties of the Internal Audit Officer/ Programme in the Computor Division have been detailed in the document, which is marked Exh. 4‑C and which appears at page 389 of the record of the learned Labour Court. The complaint of the appellant, however, all along has been that he was not assigned the duties as given in the above document, but was merely required to collect and staple together Flow Chart and Instructions, which was essentially the work of a Datary. In this behalf, the letter of 3‑12‑1979, posting the appellant to the Internal Audit Section is material. The said letter requires the appellant to report to Mr. Younus Umer Khanani of the Internal Audit Section for further instructions. It has, therefore, to be seen what was the nature of the assignment which Mr. Younus Umer Khanani gave to the appellant on his posting in the Internal Audit Section. In his evidence before the Enquiry Officer, Mr. Younus Khanani asserted that the appellant was assigned the job of completing Operating Instructions and Flow Charts of the various programmers of the various systems being run in the Computor Division. In his evidence before the Labour Court, Mr. Younus Umer Khanani, while admitting that no duties were mentioned in the letter posting the appellant to the Internal Audit Section, stated that as the duties of the Programmer are specified in the official manual there was no necessity of his giving any instructions to the appellant. These duties are specified in the document, Exh. 4‑C to which I have already made a reference Mr. Younus Umer Khanani was further examined by this Tribunal as also Mr. Azhar Sami Khan, the Programme Manager, I. B. M, as their evidence was necessary for the purpose of understanding not only the nature of duties required to be performed by Programmers of Computor Division, but also of clarifying certain technical terms and the system of working of Computers. In his evidence before this Tribunal, Mr. Younus Umer Khanani clarified that by his statement made before the Enquiry Officer that the job assigned to the appellant was to complete the Operating Instructions and the Flow Charts of the various programmes of the various systems being run in the Computor Division, he meant that the appellant was required to collect and complete the Instructions and Flow Charts from various sources in the Computor room, and by completing, he did not mean that the appellant had to write any instructions or prepare them, but he was merely to collect them. Mr. Younus Umer Khanani has thus admitted that the job assigned to the appellant consisted merely collecting of Flow Charts and Instructions and he has frankly conceded that the appellant was given no problem for which he was required to find a solution, which was the main work of the Programmer. Mr. Younus Umer Khanani further admitted in his evidence before this Tribunal that the work of collecting the instructions of the customers which were assigned to the appellant, was previously being done by another person and that it was not a proper work of a Programmer. His stand, however, was that the appellant was required to perform any duties which he assigned to him. This was also the stand taken by the Senior Vice‑President. Mr. Rizvi, in his evidence before the Enquiry Officer., Mr. Azhar Sami Khan, the Programme Manager, I. B. M., stated in his evidence before this Tribunal that the basic duties of a Programmer is to find a solution to a problem or number of problems by feeding set of instructions in the Computor language to the Computor. He further testified that though the feeding of instruction to the Computor and the preparation of these instructions would be the duties of a Programmer, but collection of these instructions would not normally be the duties of a Programmer. He further stated the I.B.M., had suggested in writing the nature of duties which should be performed by Programmers and had seen the document at page 553 of the record of the learned Labour Court, and stated that these were the duties of a Programmer as suggested by the I.B.M. It is quite apparent from the above evidence that the duties which the appellant was required to perform in the Internal Audit Section of Computor Division consisted of collecting Instructions and Flow Charts, which was essentially a work of clerical/manual nature and hence the appellant would be deemed to be a workman for the purposes of the Standing Orders, as rightly held by the learned Labour Court. The mere fact that the appellant was an officer of Grade‑III in the respondent‑Bank and was appointed as Programmer in the Computor Division of the bank is not sufficient to take him opt of the category of workman, as it is not the designation of an employee which is material for the purpose of determining whether he is a workman for the purposes of the Labour Laws, but the nature of duties for which he is employed and required to perform. Mr. Mahmood A. Ghani, the learned counsel for the respondent‑Bank, however, sought support from the judgment of this Tribunal in the case of Kifayat Hussain v. United Bank Ltd., decided on 9‑4‑1981, wherein it has been held that Kifayat Hussain, who was an officer of Grade‑III in the Bonk was not a workman for the purposes of the Standing Orders and hence was not entitled to file and maintain a grievance petition. The facts of the said case, however, are materially different from the facts of the instant case. The finding in Kifayat Hussain's case that he was not a workman was founded on the fact that there was no evidence to Show that he was employed to do or in fact was performing any duties of manual or clerical nature. In the instant case, as already stated s the duties which the appellant was performing in the Internal Audit Section were purely of manual/clerical nature.

5. It next falls to be considered whether the charges against the appellant had been duly established in a domestic enquiry. Before examining this issue, it would be appropriate to dispose of the contention of Mr. S.P. Lodhi that the enquiry proceedings suffer from a serious infirmity inasmuch as Mr. Rizvi, Senior Vice‑President, not only issued the charge‑sheet against the appellant, directed his suspension, ordered the holding of an enquiry against him and appointed the Enquiry Officer, but also gave evidence against the appellant, not only in respect of the charge of failure to carry out the instructions of his superiors by the appellant, but also on the charge that the appellant had used objectionable language towards arid levelled false allegations against him, and further acted as prosecute in the domestic enquiry against the appellant. The contention of Mr. S.P. Lodhi, however; is without substance as it was explained by Mr. Rizvi in his evidence before the Enquiry Officer that after the appellant had submitted his explanation, dated 6‑1‑1980, to the first shoes/‑cause notice, dated 5‑1‑1980, he had reported the matter to the Personnel Division of the respondent‑Bank and had thereafter acted strictly in accordance with the instructions of the Personnel Division, contained in its memorandum, dated 7‑1‑1980. It would thus appear that the formal charge‑sheet, dated 19‑1‑1980, as well as the letter, dated 28/29‑f‑1980, giving details of the acts on which the charges against the appellant were based, as also the letter of enquiry, dated 3‑2‑1980, regarding the holding of the enquiry, the appointment of the Enquiry Officer and the placing of the appellant under suspension were signed by Mr. Rizvi under instructions from the Personnel Division. Since Mr‑ Rizvi has merely carried out the instructions of the Personnel Division, which in fact had taken the decision of formal charge‑sheeting the appellant holding an enquiry against him, appointing the Enquiry Officer and suspending the appellant, the mere fact that the letters issued to the appellant in this behalf were signed by Mr. Rizvi, would not serve to invalidate the domestic enquiry.

6. Two separate charges were levelled against the appellant, the first that he had wilfully disobeyed on 2‑1‑1980, the orders of his immediate superior, Mr. Younus Umer Khanani and since then had not been taking any interest in the work, and second, he had used objectionable language and made false allegations against the Senior Vice‑President, Computor Division in his letters, dated 6‑1‑1980, 9‑1‑1980 and 12‑1‑1980. The first charge is based primarily on the evidence given in the domestic enquiry and before the learned Labour Court by witness Mr. Younus Umer Khanani, to which support is said to have been given by the evidence of Mr. Rizvi, Mr. Haroon A. Sattar and Mr. Abu Bakar H. Ahmed. In his two complaints, dated 2‑1‑1980, and 3‑1‑1980, addressed to the Senior Vice‑President, Mr. Younus Umer Khanani has merely complained in general terms that the appellant was not following his instructions but has not specified the nature of the instruction or instructions which he had given to the appellant and which he was not following. Furthermore, as already stated both these letters are on plain lined paper and not on the letter‑heads of the bank. Moreover, they do not bear any number, which would suggest the office of origin or they being issued in the normal course. It is pertinent to note that other letters issued by officers of the respondent Bank which have came on record of the case, all are on the letter‑heads of the respondent‑Bank and bear numbers. These circumstances thus create doubts about the genuineness of the said written complaints. It may further be mentioned that not only the two complaints made by Mr. Younus Umer Khanani to the Senior Vice‑President do not specify the nature of the instructions which the appellant was given and which he is said to have refused to follow/obey, but even in the first show‑cause notice, dated 5‑1‑1980, it is again generally stated that the appellant had refused to follow instructions given to him from time to time without specifying as to what was the nature of those instructions. Even in the formal charge‑sheet, it has merely been mentioned that on 2‑1‑1980, the appellant had wilfully disobeyed the orders of his immediate superior and since, then was not taking interest in his work, without specifying what were those instructions. Moreover, the names of the persons in whose presence he is said to have refused to carry out those instructions have not been mentioned in that charge‑sheet. The letter, dated 28/29‑1‑1980, giving details of the acts on which the charge‑sheet, dated 19‑1‑1980, is based, no doubt mentions the names of Mr. Abu Bakar H. Ahmad and Haroon A. Sattar, but it also fails to mention the nature of the instructions which were given to the appellant by Mr. Younus Umer Khanani and which he is said to have failed to follow or disobeyed. It was for the first time in the domestic enquiry that Mr. Younus Umer Khanani came out with the story that he had asked the appellant to collect and compile the instructions of the jobs of customers. The allegation must be considered not only in the background of the fact that upto the time of giving evidence Mr. Younus Umer Khanani did not specify or clarify what instructions the appellant had failed to obey, but also in the light of two other circumstances, the first being the evidence of Mr. Younus Umar Khanani that the collecting of instructions of the jobs of customers though it was being done in the Computor Division, was not the work of Programmer, but was being done by another person who was not Programmer. The second circumstance is that though as far back as on 22‑12‑1979, the appellant had submitted a report to Mr. Abdul Sattar, Deputy Controller (Operations) with copies to Mr. Younus Umer Khanani and Abdul Ghaffar A. Sattar that he had handed over to him operating instructions and flow charts of all the systems in operation which may be checked and advise if there is any omission, there was no response to his said letter till 5‑1‑1980, when he was issued the first charge‑sheet containing the allegation that he had failed to carry out the instructions of Mr. Younus Umer Khanani. Finally, it may be mentioned that Mr. Younus Umer Khanani himself admitted in his evidence before this Tribunal that he had made no note on the completion report, dated 22‑12‑1979, of the appellant that it was incomplete or it was useless or more other work had also to be done. All these circumstances, to my mind, create a very reasonable doubt as to the genuineness of the allegations levelled by witness Younus Umer Khanani against the appellant. There remains, however, the evidence of Mr. Rizvi, Mr. Abu Bakr and Mr. Haroon A. Sattar. So far as Mr. Rizvi is concerned, he has merely stated that he had received the two complaints, dated 2‑1‑1980 and 3‑1‑1980, respectively, from Mr. Younus Umer Khanani and the oral complaint which the latter had made to him. Since the evidence given by Mr. Rizvi is based upon the information supplied to him by Mr. Younus Umar Khanani, the evidence of Mr. Rizvi does not add anything to the evidence of Mr. Younus Umer Khanani. As regards the evidence of the 2 witnesses, Mr. Abu Bakr H. Ahmed and Haroon A. Sattar, it makes interesting reading. The material part of the evidence of Haroon A. Sattar which was given in Urdu reads as follows:‑‑

The witness was asked to state the date on which the incident is said to have occurred, the place where it had occurred and the nature of the work or instructions, which the appellant was required to do, but he was not able to say anything in regard to these important factors.

7. The evidence of Mr. Abu Bakr H. Ahmed is equally unhelpful. According to his testimony before the Enquiry Officer, Mr. Younus Umer Khanani told the appellant that he had "to do that work and other work also whereupon Mr. Manazir replied that Like Mr. Haroon A. Sattar, Mr. Abu Bakr H. Ahmed was unable to recollect the date on which the above incident is said to have occurred. He was also unable to state the nature of the instructions or the work which the appellant was required to do by Mr. Younus Umer Khanani. Moreover, whereas according to Mr. Younus Umar Khanani the incident is said to have occurred in the Processing Section, according to witness Abu Bakr H. Ahmed, it took place in the Punch Room. The cumulative effect of all these circumstances is that it cannot be said that the charge of wilful disobedience of orders of his superior or to follow any l specified reasonable instructions has been established against the appellant. It has been held by this Tribunal in the case of Niaz Ahmed v. Asbestos Cement Industries Ltd. 1983 P L C 542 that where an order of dismissal of a workman is passed on more than one charges,' but one of those charges either has not been established or does not amount to misconduct, the dismissal orders cannot be sustained, as on the one hand, it cannot be said that the employer would have dismissed the workman on the remaining charges established against him nor is the possibility excluded that the decision of the employer was influenced by the charge which was not established against him. In such cases, however, opportunity must be given to the employer to initiate proceeding from the stage at which the infirmity occurred if he chooses fit as was' done by the Supreme Court in the case of Islamabad Club v. Punjab Labour Appellate Tribunal P L D 1980 S C 307.

8. The upshot of the above discussion is that 1 would set aside the orders of dismissal of the appellant, dated 27‑2‑1980, and direct the respondent‑Bank to re‑instate him in service. It will, however, be open to the respondent‑Bank to consider the case of the appellant only in respect of the second charge, namely, using objectionable language and levelling baseless allegations against Mr. Rizvi, in his letters, dated 6th, 9th and 12th January, 1980 and after affording him an opportunity of hearing in this behalf, to pass orders on the enquiry proceedings in accordance with law. The award of back benefits will depend upon the result of such further proceedings.

A. E.

Appeal allowed

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