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Appeal No. SUK‑189 of 1983, decided on 8th July, 1985.

‑‑‑Ss. 2(xxviii) & 25‑A‑‑Grievance petition against dismissal from service‑‑Maintainability‑‑Employee doing clerical nature of work, held, would be 'workman'‑‑Such employee was entitled to file grievance petition against dismissal.

1982 P L C 294 ref.

‑‑‑S. 25‑A‑‑Limitation for filing of grievance petition‑‑Employee receiving final answer from department that his appeal was withheld on 29‑8‑1981‑ Time, held, would run from 29‑8‑1981 and petition filed on 12‑10‑1981 was with time in circumstances.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Employee having been suspended for indefinite time of three years, no domestic inquiry having been completed Till after twelve months of giving of charge‑sheet and domestic enquiry itself not produced in Court, such domestic enquiry, held, was irregular and invalid in circumstances.

M.L. Shahan for Appellant.

Nizamuddin Baloch for Respondents.

Date of hearing: 11th April, 1985.

The instant appeal was admitted on 8‑3‑1984 by my learned predecessor. The appeal arises out of the order of the Labour Court No. VII at Sukkur, who dismissed the grievance petition of the appellant on 28‑5‑1983. The petition was dismissed on the grounds that the petition was time‑barred and that the appellant was not a workman.

2. The facts are that Nizamuddin Memon was an employee of the National Bank of Pakistan and was appointed as Money Tester on 9‑11‑1964 by the respondents. He was promoted as Senior Head Cashier at the Zonal Office, Sukkur. However, on 26‑12‑1977, he was placed under suspension. He continued to be under suspension from 26‑12‑1977, when on 3‑3‑1979, he was served with a charge‑sheet. Another charge- sheet was served on him on 23‑1‑1979. The appellant replied to the charge‑sheet and refuted the allegations. The domestic enquiry was held on 20‑1‑1980 during which the appellant was required to appear and participate in the said enquiry. The allegation of the appellant is that no proper enquiry was held as no witness was examined and no document of the appellant was placed on record. A copy of his reply is placed on record. After the alleged enquiry the appellant was served with the order whereby he was dismissed from service, with effect from 29‑1‑1981. The appellant preferred departmental appeal on 28‑2‑1981 and again on 26‑4‑1981, he made further reference of appeal. These two appeals were answered on 29‑8‑1981 describing the appeal "has been withheld", therefore, the appellant sent a grievance notice, dated 12‑10‑1981. The respondents replied the grievance notice on 14‑10‑1981 and did not redress his grievance, hence, he came in a grievance petition in the Labour Court, with a prayer to direct the respondents tore‑instate him with full back benefits.

3. The learned Labour Court vide para. 11 of its Order dismissed the petition of the appellant for want of jurisdiction. The Appellate Tribunal in appeal, vide its Order, dated 1‑3‑1982, set aside the order of the Labour Court and remanded the case to it for giving opportunity to both the parties to lead evidence on the point as to what was the nature of duties which the appellant was required to perform and thereafter give fresh decision.

4. The respondents filed written statement Exh. 2 denying the charges. The appellant filed his affidavit in evidence Exhs. 3 and 4 while the respondents in support of their contentions have filed a counter‑affidavit Exh. 5. This affidavit consisted of the evidence led by the parties. The Labour Court thus framed 3 issues, namely, whether the appellant was a workman; (2) whether the grievance notice given by the appellant is time‑barred; and (3) whether the appellant was illegally dismissed.

5. I have heard Mr. M.L. Shahani for the appellant and Mr. Nizamuddin Baloch, Advocate for the respondents. The contention of the learned Advocate, Mr. M.L. Shahani is that the entire evidence is misread. I have read the impugned order. The evidence of the appellant consists on Exhs. 3 and 4. The appellant averred that he was workman under the Law and his grievance is under Standing Orders Ordinance, 1968, and Wage Commission Awards of 1974‑75. He states that he was promoted as a Senior Clerk but the nature of his duties were of Cashier and he used to prepare vouchers, bills, make entries in Ledger, countersign on other documents, prepare the quarterly bank's statement and also used to do other miscellaneous clerical work. The other side filed counter‑affidavit of Ali Ahmad Khan, Exh. 5 and in its para. 5, it has been stated that the appellant was promoted as Senior Head Cashier/Officer in the year 1975 and since then he had all along been performing his duties substantially of supervisory nature. This piece of evidence is not understood. The evidence of Ali Ahmad Khan would show that the essential duties of the appellant was that of supervisor and managerial in nature. He was merely a Cashier and was dealing with making entries in the Ledgers and other work primarily of clerical nature. He held no Power‑of‑Attorney as an Bank Officer No. II or III. It is, therefore, clear that the evidence of Ali Ahmad Khan is got to be rejected. The categorical assertion of the appellant is that he used to prepare vouchers, making entries in the register and countersign other documents etc. This is a purely of clerical nature of work and the appellant would be called a workman. The learned counsel has quoted 1982 P L C 294 in support that he is not a workman. He should have read the authority quoted by him. The criterial enunciated in the said authority is that the clerical work should be in direct, immediate and substantial part of work and not sundry duties incidentally performed by an employee. In this case his duties performed by the appellant were not sundry duties. They were substantial and immediate and direct work that he performed and which duties were essentially clerical in nature. Therefore, the proper reading of the authority should have given the Labour Court the guidance and he ought to have come to the conclusion that the appellant was a workman.

6. The arguments of Mr. Nizamuddin Baloch do not impress me and from the evidence on record, I have come to the conclusion that the appellant was a workman.

7. As regards the second point of limitation, wrong dates are attributed to the impugned decision. The dismissal order is, dated 29-1‑1981. Appeal is preferred on 28‑2‑1981. Exh. 1 is supplementary to the appeal made by the appellant as, dated 10‑8‑1981. On 29‑8‑1981 he received the reply that his appeal is withheld as the appellant gave no new points in his appeal. The grievance notice given by the appellant is, dated 12‑10‑1981. The appeal period being excluded, the grievance notice was in time. It is strange that the impugned order calculated from 18‑6‑1981 the date on which the appellant ‑received reply to his appeal, dated 28‑2‑1981 as being withheld. Now the letter of 18‑6‑1981 and subsequent letter of 6‑7‑1981 are of the same nature but the letter, dated 29‑8‑1981 should be counted as it was the final answer that the appeal was withheld. The time runs from 29‑8‑1981 and the grievance petition is, dated 12‑10‑1981 which is within time.

8. Mr. M.L. Shahani while discussing and criticising the impugned order has observed that double standard are used and the proper dates which are ought to be 29‑8‑1981 is omitted and the earlier date of 18‑6‑1981 is adopted. This double standard is deprecated. I, therefore, hold that the grievance petition was in time.

9. It is to be observed that this case has a chequered history. The appellant was placed under suspension in 1977 and then domestic enquiry was held against him which took full one year till he was dismissed on 29‑1‑1981. This inordinate delay in domestic enquiry and the major penalty given by the management is very strange. It is not known that after placing the appellant under suspension what efforts were made to limit the period of suspension to 3 months or lessor period. The biggest mistake or illegality committed by the respondents is that the suspension continued from 1977 upto 1979 when he was given the charge‑sheet.

10. Strangely enough the report of the enquiry officer has not come on the record. The nature of allegations are ambiguous and unintelligible what precisely was the fault of the appellant is not known. Since the report of the Enquiry Officer is not brought on record, it cannot be said that the domestic enquiry was held according to the regulations and law. Already domestic enquiry took about 12 months to be completed and one Mr. Aliani was appointed as enquiry officer and his report is not available. He was placed under suspension for a number of years. The regular enquiry was not made no witnesses were examined to bring the guilt home to the appellant. In the domestic enquiry the conclusion ought to be that the guilt is proved, in consequence which the major penalty was imposed. The domestic enquiry appears to be no enquiry and the appellant was not heard as to what he has to say with regard to the charge‑sheet.

11. In short I would sum up the facts in this case. Firstly, the petition was suspended for indefinite time of 3 years and secondly the charge‑sheet was given in 1979 and no domestic enquiry was completed till after 12 months of the giving of the charge‑sheet. The domestic enquiry itself is not produced in the Court and one does not know how many witnesses were examined and how the charge was proved against the petitioner and whether the guilt was brought home to the petitioner. For all these reasons the domestic enquiry was irregular and invalid.

12. In the end, I set aside the order of the Labour Court No. VII, Sukkur and hereby order to re‑instate the appellant. So far the back benefits are concerned, only 25 of them to be given to the appellant forthwith. The appeal is allowed.

A.A.

Appeal allowed.

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