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Appeal No. KAR-233 of 1984, heard on 22nd August, 1985.

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

---S. 1(4), proviso & S.O. 15(4)--Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 38-D--Bank employees--Jurisdiction of Labour Courts--Wage Commission Award--National Bank of Pakistan Staff Rules, 1973 as superseded by Wage Commission Award of 1975 and successively upto 1980 applied by Wage Commission to Nationalised Banks--Not statutory rules so as to exclude application of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and jurisdiction of Labour Court--Charge-sheet served much after expiry of one month of allegations coming to notice of management--Time-barred.

1983 P L C 468 and 1982 P L C 683rel.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

---S. 2(i)--'Workman'---Whether or not an employee a workman--- Determining factor--Nature of duties performed predominently and not sundry duties performed incidentaly--Bank employee Grade-II---Power of Attorney given by Bank not signed by employee---Not an executed Attorney---Merely recommending increments and leave to employees but not having powers to decide suo motu or to take any initiative and doing predominently clerical work---A workman.

1985 S C M R 1511 distinguished.

P L D 1981 S C 172; P L D 1969 Lah. 717 and 1979 S C M R 384 rel.

Date of hearing: 22nd August, 1985.

On 25-8-1985, a short order was passed by this Tribunal in this appeal. The reasons thereof are as under:-

This is a case of long chequered history where the appellant was in the first instance suspended and thereafter a domestic enquiry was initiated against him. Before he was formally dismissed in the domestic enquiry, he filed a grievance petition before the Labour Court and the grievance petition was dismissed on 3-9-1984, by the IInd Sind Labour Court, Karachi. This is an appeal against the said order. The grievance petition was dismissed on account of the fact that the petition was time-barred.

2. The facts briefly narrated are that the appellant was employed in the year 1964, as a clerk in the Standard Bank Ltd. (now merged with the Habib Bank Limited) and afterwards was placed in Grade-II. On i1-3-1981, the appellant was transferred to the North Napier Road Branch. On 14-3-1983, the respondent-Bank suspended the appellant with immediate effect on the gronds that some L. Cs. were issued by Rangiwara Branch of the respondent-Bank at the recommendations of the appellant. A show-cause notice was issued on 17-6-1982. The appellant replied the. show-cause notice but a domestic enquiry was conducted and a second show-cause notice was also issued which was duly replied by the appellant. The appellant in order to save himself from eventual dismissal believing that the enquiry was partial, filed a civil suit for declaration and injunction wherein the Court granted ad interim injunction on 1-11-1982 which was duly confirmed on 12-1-1983. But, subsequently the District Judge set aside the order on 23-5-1983. The appellant filed a revision petition in the High Court of Sind on 26-5-1983, which was admitted by the High Court and the High Court granted the ad interim stay of the operation of the impugned order of the said District Judge. On 28-5-1983, an inter-branch memo. was issued by the Vice-President and Zonal Chief to Mr. S. Musheer Hassan, Vice-President, Personnel Division, Habib Bank Limited, Karachi, wherein the appellant was directed to report before Mr. S. Musheer Hassan accordingly he reported before Mr. Musheer Hassan on the same day but was not allowed to resume duties with the instructions to come again. On several occasions, the appellant approached the respondent bank for assignment of duties as per directions contained in the inter branch memo., dated 28-5-1983, but of no avail. Finally, on 9-2-1984, the respondent-Bank refused to allow the appellant to report for duty and the appellant gave a grievance notice as required under section 25-A, I.R.O., 1969. Accordingly a petition under section 25-A, I.R.O., 1969 was moved in the Sind Labour Court No. I at Karachi. The Labour Court No. I granted the stay application and directed the respondent-Bank to put back the appellant on duty. In an appeal before this Tribunal, the Tribunal set aside the order passed by the said Labour Court and transferred the case to Sind Labour Court No. II, Karachi. Affidavits of appellant and his witnesses, Najeebullah were filed and the matter was adjourned for cross-examination but in the meantime the objections were filed by the respondent-Bank and, therefore, relying on the objections, the learned Labour Court dismissed the grievance petition of the appellant on the ground of limitation and on the ground that the appellant was not a workman. It may be stated in this connection that the grievance petition was essentially against the grievance of suspension of the appellant. According to the appellant, his dismissal order was not communicated to him and he was kept under dark. A letter from S.A. Sabswari, dated 18-2-1984, Exh.A-5, which is placed on record shows that he for the first time was told in this letter that he was dismissed on 23-5-1983. The letter at Exh.A-4, dated 28-5-1983 states as per telephonic instructions we are sending Mr. Anwarul Haq Qureshi, Officer, under suspension to report immediately.' That means the dismissal order was not yet passed as late as 28-5-1983, and the appellant did not know about it. Although subsequently the stand taken by the management is that the order, dated 23-5-1983, was pasted against the doors of his house which were closed, that point would come in discussion while dealing with the evidence.

3. The appellant, however, filed the grievance petition against his continuous suspension and removal from service according to his affidavit filed in the Labour Court. The grievance petition, therefore, must be construed against the dismissal order and also against the suspension.

4. The contentions of the repsondent-bank is that the grievance petition is time-barred. The appellant is not a workman under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

5. When the matter came to this Tribunal it was contended that no evidence was recorded in the Labour Court and as such, I ordered that the evidence of both the parties should come on record and cross examined. Hence, the affidavits of the appellant and his witness, Najeebullah on the side of the appellant and on the side of the respondent-Bank, Ghayoor Ahmad and Muhammad Ahmad, the Enquiry officer, were filed. The Court witness, Mr. Shujat Ali, Assistant Director, Federal Investigation Agency, was also examined.

6. I have heard the arguments of Mr. Muhammad Humayoon, the learned counsel for the appellant and Mr. Obaidur Rehman, the learned counsel for the respondent-Bank.

7. Before I come to the evidence, I would like to dispose of the point of limitation in this case. The cause of action accrued to the appellant on 9-2-1984, when he was finally refused to be allowed to resume the duties. He filed the grievance petition on 26-2-1984, which was well within time. The Labour Court has not taken into consideration that he was actually dismissed according to the respondent-Bank on 23-5-1983, though it is disputable but the Labour Court took the date 14-3-1983, of the suspension order to compute the time limit. He was wrong and had fallen into error. It may be maintained that the appellant did not know about his dismissal till in the month of February, 1984, when he was communicated the letter which is exhibited as 'A-5'. According to this document, he for the first time, came to know that he stood dismissed on 23-5-1983. As regards the pasting of the notice on the doors of the house of the appellant, his brother-in-law, Najeebullah has averred in affidavit that such a notice never pasted on the doors as the house was never closed and the house was open. This shows that the dismissal order was not communicated to the appellant till 18-2-1984. Even, the letter which is, dated 28-5-1983, gives the hint and indicates that as far back as on 28-5-1983, no dismissal order was passed because the bank officers themselves wrote to Mr. S. Musheer Hassan that the appellant who is under suspension is sent to him. It is, therefore, clear that on 28-5-1983, no dismissal order was passed. It might have been passed in the later times. It is, therefore, further clear that the grievance petition is within time. The prayer in the grievance petition itself is to reinstate the appellant which indicates that the grievance petition is in order and it is a petition, both against the suspension and against the dismissal order.

8. Mr. Obaidur Rehman has raised four points in this appeal, namely, (1) that the appellant was not a workman; (2) the Labour Courts have no jurisdiction due to the award of Wage Commission, (3) the domestic enquiry fully established the guilt of the appellant; and (4) the grievance petition itself is defective.

9. As regards the last contention that the petition is defective, I have already answered this while dealing the point of limitation and the prayer clause of the main grievance petition such the petition is not defective. The affidavit submitted in the Labour Court by the appellant at paragraph 18 contains that he was removed from the service and as such the petition mainly is against the removal or dismissal of the appellant.

10. I would take up the point of Wage Commission Award in the first instance and then go into the main point, whether or not the appellant is a workman under the Standing Orders.

11. The contention of Mr. Obaidur Rehman, the learned counsel is that the Labour Courts have no jurisdiction in view of the Wage Commission Awards of 1975 to 1980. A true copy of the judgment of Division Bench of Lahore High Court is shown to me and is placed on record. In this judgment, the view is taken that since the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, by virtue of section 1(4), Standing Orders Ordinance is not applicable. This Tribunal is not aware of any such view taken by our High Court or the Supreme Court of Pakistan. The question is whether the rules applied to the banks are the rules contemplated by section 1(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The Wage Commission applied the, rules to the Nationalized banks, the rules of the National Bank of Pakistan Staff Service Rules, 1973, as superseded by the Wage Commission Award of 1975 and successively upto 1980. The rules of National Bank of Pakistan in 1973 were also not Statutory Rules as they did not comply with section 32 of National Bank of Pakistan Ordinance, 1949. The previous approval of the Federal Government to the making of these rules has not been obtained as is required by section 32 of Ordinance, 1949. Therefore, the rules applicable to the Nationalized banks are not the statutory rules and as such the Standing Orders Ordinance is applicable and the jurisdiction of the Labour Court is not divested. In this respect, there is an authority reported in 1982 P L C 468 and an authority reported in 1982 P L C 683, I would quote the extracts from both these authorities, respectively:-

"There remains the question what rules were applicable to the respondent and whether the application of those rules excludes or bars the application of Standing Orders or the jurisdiction of the Labour Courts. In considering this issue, the important factors to remember are that the respondent was charge-sheeted on 16th February, 1978 in respect of charges relating to the period from 7th July, 1976 to 31st October, 1977 and that he was dismissed, vide office order, dated 10th April, 1980, while his departmental appeal was withheld as intimated to him, vide letter, dated 7th February, 1981. In the case of N.B.P. v. Nizamuddin Mehar, it was pointed out by this Tribunal that the National Bank of Pakistan Staff Service Rules, 1973 which were previously applicable to employees of the National Bank of Pakistan, stood superseded at the relevant time, by the Disciplinary and Efficiency Rules for Banks and Financial Institutions, 1975, and since these rules are not statutory rules but in the nature of an award by the commission as provided in section 38-D, I.R.O.; the employees of the National Bank of Pakistan were not exempted under the proviso to subsection (4) of section 1 of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, from the provisions of the Standing Orders, In the later case of Altaf Ahmad Shaikh v. National Bank of Pakistan (Appeal No. SUK-33 of 1982), decided on 17th March, 1982, the question was further considered as to which rules were applicable to employees of the National Bank of Pakistan and whether the application of these rules bars the jurisdiction of the Labour Courts. The facts in that case were somewhat similar to the facts of the present case. In that case Altaf Ahmad Shaikh who was working as an Assistant in the Shikarpur Branch of the N.B.P. was suspended from service by an order, dated 10th May, 1977. The suspended period is said to have continued for 3 years. Altaf Ahmad Shaikh challenged the orders of his suspension before the Labour Court at Sukkur which held the suspension to be invalid. The respondent-bank preferred an appeal but it was unsuccessful. The National Bank of Pakistan, therefore, on 15th June, 1980, served a charge-sheet on Altaf Ahmad under the Efficiency and Discipline Rules for Banks and Financial Institution in respect of acts said to have been committed by him between February, 1976 to February, 1977. However, this charge-sheet was latter withdrawn and a fresh show-cause notice, dated 8th September, 1981 was issued against Altaf Ahmad under the N.B.P. (Staff) Service Rules, 1980. The new show-cause notice contained the same allegations as in the earlier charge-sheet. Altaf Ahmad submitted an explanation to this show-cause notice but it was not found satisfactory and he was dismissed from service by order, dated 18th October, 1981. Altaf Ahmad Shaikh then preferred an appeal to the President of the Bank but he obtained no relief. He accordingly filed a grievance petition before the learned Labour Court. Reiterating its view taken in the case of Nizamuddin Mehar, it was held by this Tribunal that the application of the 1975 Rules did not exclude the application of the Standing Orders and consequently the competence and the jurisdiction of the Labour Courts to deal with the individual grievance under clause (3) of Standing Order 12 read with section 25-A, I.R.O.; was not affected. The mandatory requirement of clause (4) of Standing Order 15 is that if a workman is to be dismissed for an act of misconduct such act must be brought to the notice of the workman within one month of its commission or the act coming to the notice of the employer. In the instant case the respondent was charge-sheeted on 16th February, 1978 for acts of misconduct said to have been committed by him in the years 1976 and 1977. The acts of misconduct on which the dismissal of the respondent is based were thus not brought to his notice within the period provided in clause (4) of Standing Order 15. It was, however, contended by Mr. Kazi, the learned counsel for the appellant-Bank that the said provisions did riot apply to employee of the bank by reason of this overriding effect which the Efficiency and Discipline Rules of 1975 have under section 38(1), I.R.O. The said section, however, does not make other laws inapplicable to workers whose terms and conditions have been fixed by the Wage Commission under the I.R.O. but provides that the provisions of sections 38-A to 38-B shall have effect notwith standing anything therewith contained in any other law. At best, therefore, if there be any inconsistency between the Efficiency and Discipline Rules for Banks and Financial Institutions, 1975, and the Standing Orders, the latter to the extent of the inconsistency would give way. I, however, find no inconsistency between the said rules and the provisions contained in Standing Order 15(4) requiring the bringing of misconduct to the notice of the workman within one month. From the mere fact that the rules of 1975 do not contain any provision in this behalf no inconsistency can be presumed (see A . Javed v . N . I . R . C .) I am, 'therefore, of opinion that the dismissal of the respondent cannot be upheld as the charges on which the dismissal is based were not brought to his notice within the period prescribed in Standing Order 15(4)."

"In compliance with the suggestion of the Second Wage Commission Award, the National Bank of Pakistan Staff Service Rules, 1980, were framed in suprsession of the Rules of 1973. Sub-rule (2) of rule 1 of the said Rules provides that they shall be deemed to have taken effect from 1st January, 1980, but cases already decided before the commencement of the said Rules shall not be reopned if the decision taken is in conflict with any of the provisions of the present Rules. These Rules admittedly have not been made under the rule-making powers contained in section 32 of the National Bank of Pakistan Ordinance, 1949. No reference to the said Ordinance has been made in the Rules. Furthermore, the previous approval of the 'Federal Government to the making of these rules has not been obtained as required by section 32 of Ordinance XIX of 1979. It was, therefore, frankly conceded by Mr. Mamoon Kazi that the Staff Rules of 1980, cannot be considered to be statutory rules but were framed by the bank and its Board in pursuance of the award of Second Wage Commission."

12. In view of the above authorities, the Labour Courts have jurisdic tion to look into the domestic enquiries and give appropriate relief.

13. The next contention of the learned counsel for the respondent Bank is that the appellant is not a workman. In support of his contention, he has produced 1985 S C M R 1511. Before, I discuss the latest Supreme Court authority, I would refer to the case of Mufti Mushtaq Ahmad v. Federation of Pakistan, P L D 1981 S C 172. It is observed in this authority that the nature of duties were to determine as to whether the appellants were workman or not. In an authority, reported in P L D 1969 Lah. 717, it was held that the true test to determine as to whether an employee was workman or not within the meaning of section 2(i) of Standing Orders, is to look into the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by; him. The true answer to this question will, therefore, depend upon the proved facts in each case. The principle evolved by these authorities is simply to determine whether the workman performed duties predominently those, the nature of which was clerical. The sundry duties incidentally performed by him may not be looked into in order to determine whether Rte is a workman or not. In this case, I have looked into the evidence on record in which he performed duties though in Grade-II were predominently clerical B in nature. He did not perform supervisory or managerial functions and had no initiative whatsoever in taking decisions suo motu. The decisions were taken by Area Chief and his business was merely to recommend the case. The recommendations of the case is not the decisions taken in management. There overwhelming evidence is that he only recommended certain cases to the Area Chief. The authority which is referred to me by Mr. Obaidur Rehman, reported in 1985 S C M R 1511 contemplated that where the power of attorney is 'executed' in favour of such employee by bank showing that powers conferred on and fuctions thereby required to be performed by employee could neither be termed as manual nor clerical work and invovled exercise of discretion and taking of important decision. Such employee also given in clear and unambiguous words power to manage some of affairs of bank with number of powers which he could exercise by himself or jointly with other attorneys of bank which could by no means be said to be manual or clerical in nature. In this respect the evidence on record shows that power of attorney was not 'executed' via-a-via, the appellant. The appellant states that he did not sign the power of attorney given to him. The words 'executed' carries the implicit meaning that the power of attorney is signed not only by the bank but by the appellant also. In the present case the power of attorney is not signed by the appellant. The appellant replying the cross-examination has stated that 'I see the power ;of 'attorney EXh.'A'. The power of attorney just shown to me was issued to me but it does not bear my signatures and I never acted according to this power of attorney'. Thus, he did not sign the power of attorney and, therefore, the power4of4attorney was never executed against the appellant. Merely to give the power of attorney or to place it on record of the bank, the power of attorney has no force but the power of attorney should be 'executed'. The Grade-III and Grade-II officers were doing clerical work and this clerical work was substantial and not incidental. In the cross-examination, the appellant has made certain averments which are to the effect that one, Munir Javed was the Administrative Officer. Mr. Fazlani was the immediate officer of the appellant. The appellant recommended according to the instructions given to him by the Area Chief in the increments to Grade III and Grade-II officers and other staff. These were mere recommendations. He could not grant leave to the staff as manager. The applications for leave were only recommdened. As the evidence goes the power of attorney is not executed or signed by the appellant and predominently he was doing clerical work. Therefore, the Supreme Court authority is distinguishable. He is, therefore, a workman according to the definition of Standing Orders Ordinance. At this stage, I am referred to 1979 SC M R 384. The above authority according to me is relevant. It has observed:-

"It is also clear from the statement in his affidavit that he had no supervisory functions at all after he was asked to act on the instructions from Mr. Fareed Khan."

14. The next point to which I would advert is the domestic enquiry. The affidavit of witnesses are on record. The cross-examination of the appellant and the witnesses were perused by me. It may be pointed out that the appellant was suspended on 14-3-1982 and the charge-sheet was served on him on 17-6-1982. The bank came to know about the misdeeds of the appellant in the month of March, 1982, they should have given within one month. But in this case they have served the charge-sheet on 17-6-1982. The charge-sheet appears to be time-barred, D The charge-sheet enumerates five charges in opening the accounts of (1) Moonlight Corporation; (2) Abdul Hamid and Sons; (3) Dawood & Sons; (4) A. Ghaffar & Co.; and (5) Abdul Karim & Sons. These accounts of various parties were opened at the Napier Road Branch of the bank by the appellant at the instance of Hanif Singapuri, who was known to the appellant. The allegations is that the five accounts opened were fictitious accounts and they were opened by Hanif Singapuri alias Haji Zikria. The allegation against the appellant is that he connived with opening the accounts having full knowledge that the accounts were fictitious. The appellant in his answer to show-cause notice has denied that' the persons were fictitious. The real persons have signed the accounts in his presence and that the worth of the parties is correctly given by him. He had no knowledge that they were fictitious or the signatures were changed or he connived over their fictitious 3-7-1982, he gave reply to the above show-cause notice and during this time, the matter was being investigated by the F.I.A. at the report of the appellant himself. The report was made to the F.I.A. by the bank at the instance of the appellant and the F.I.A.'s report of the investigation is as under:-

15. Mr: S.M. Shujat Ali, Assistant Director, F.I.A. investigated the matter and he has deposed that he succeeded to challan two accused, Hanif Singapuri and Abdul Rauf before the Martial Law Court under sections 420, 468, 471 and 477 etc. He also made enquiries with regard to the conduct of Anwarul Haq Qureshi, the present appellant. Anwarul Haq Qureshi, the appellant, in the North Napier Road Branch only opened the accounts on the recommendations of Hanif Singapuri, who was known to Anwarul Haq Qureshi. Hanif Singapuri enjoyed the confidence of Anwarul Haq Qureshi as he had accounts and made genuine business in three L.Cs. The function of Anwarul Haq Qureshi was to recommend at the instance of Hanif Singapuri the opening of accounts of certain parties. During his investigation, he did not find fault with Anvyarul Haq Qureshi by his action of recommending the opening of L. Cs. He was not actually involved in opening of accounts and the L.Cs; as he was prompted by his likely promotions on account of getting business. He was not in league with Hanif Singapuri. The investigation revealed that he had not taken any benefit from Hanif Singapuri. The F.I.A., therefore, absolved the appellant. The liability was actually on Vice-Zonal Chief and officers posted at Foreign Exchange Branch of the Bank at Rangiwara. This is the evidence of the Assistant Director, F.I.A. A report was submitted to the Chairman of Pakistan Banking Council. The two paragraphs are worth noting. They are as under:-

"Nothing incriminating have been found during investigation against the aforesaid Mr. Anwarul Haq Qureshi and he had not been found involved in the commission of the crime, rather his previous and subsequent conduct in the matter have revealed that he having come to know that the- accused persons named above had committed the crime and were to disappear took steps to get them apprehended and also took steps in mitigating the loss sustained by the bank. It would be worth mentioning here that immovable properties comprising of one house and a shop worth approximately Rs.22,00,000 acquired by accused Muhammad Zikir Hanif Singapuri out of the defrauded amount have been taken over by the F.I.A. On completion of the required legal formalities, the values of the house and the shop, on disposal, would compensate the loss sustained by the bank."

16. This shows that appellant is not involved in criminal offence of cheating but he has actually helped the F.I.A. as would be clear from the above two paragraphs The F.I.A. has indicated the Area' Chief and other officers in this respect, were liable.

17. Now, I would come to the actual domestic enquiry. The enquiry report is submitted before me bases its findings on mere conjuncture and presumptions and the behaviour that was observed by the Enquiry Officer at the time of conducting the enquiry. Following paragraph is clear:-

"In view of the foregoing and also my own observation of the defendant's behaviour during the enquiry I have no hesitation in disbelieving the defendant's explanation against managements charges levelled against him. He has obviously colluded with Mr. Hanif Singapuri in breach of trust reposed by the management on him as Branch Manager. He has acted fradulently and dishonestly with the bank's business, concealed true facts and deliberately made untrue statements to his superiors and he has thus been wilfully inefficient and dishonest in performance of his duties."

18. Definitely this enquiry was presumptions and nothing is proved against the appellant. I may also point out that dismissal order was being postponed till upto 28-5-1983. When actual order was signed, it is not known and the management has given a note that the dismissal order was signed immediately after when the appeal before the District Judge was decided in favour of the management. The appeal by the District Judge was decided on 28-5-1983, the Bank did not pass the dismissal order, vide 'Exh. 5-A'. I have made observations in my preceding paragraphs in this respect. The entire enquiry did appear to be due to grudge and malice. I, therefore, give the appellant a clean slate and set aside the order of the learned Labour Court and allow this appeal. The appellant be reinstated in the service with all the back benefits immediately.

A.E. Appeal allowed.

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