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Appeal No. HYD‑169 of 1985, decided on 17th July, 1986.

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

‑‑‑S. 2(i)‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑ "Workman"‑‑Scope of term‑‑Bank employee claiming to be "workman" doing work of clerical nature‑‑Evidence in rebuttal‑‑Employer producing no evidence to rebut claim of employee to be a workman‑‑Employee was not afforded any opportunity to produce his evidence in support of his claim‑‑Such employee, held, would be deemed to be a workman doing work of clerical nature, though designated as Manager/ Accountant Inspection‑‑‑ Mere designation would not oust a person from claiming himself as a workman unless contrary was proved‑‑Such employee would be entitled to invoke jurisdiction of Labour Court and maintain his grievance petition.

1980 P L C 81 rel.

‑‑‑Ss. 25‑A & 38(3)‑‑Grievance petition‑‑Domestic enquiry contrary to principles of natural justice‑‑Effect‑‑Charges against employee, held, could not be proved in an enquiry which was held quite contrary to provisions of law and principles of natural justice‑‑Such enquiry being illegal and perverse employee was wrongly dismissed from service in consequence thereof‑‑Employee was directed to be re‑instated in service with fifty per cent back benefits.

Salahuddin H. Ahmad for Appellant. Hidayatullah for Respondent. Date of hearing: 17th July, 1986.

Muhammad Ismail Memon, the appellant has filed an appeal against the impugned order, dated 22‑4‑1985, passed by the Sind Labour Court No. VI at Hyderabad, dismissing his grievance petition filed by him under section 25‑A, I.R.O., 1969.

2. Briefly the facts are that the appellant was employed in the respondent‑bank as Trainee Supervisor in 1964 and was finally promoted to the post of Grade‑II as Manager/ Accountant of Inspection. As, according to him he had the duties of clerical nature, therefore, he claims to be covered by the provisions of Standing Orders Ordinance 1968 and the Industrial Relations Ordinance, 1969. On 13‑7‑1977, the appellant was issued a charge‑sheet and after a period of three years, one Aamar Raza Jafri was appointed as Enquiry Officer, vide letter of the respondent‑bank, dated 19‑8‑1980. Admittedly, in the said enquiry, neither any prosecution witness was examined on behalf of the respondent‑bank nor the appellant was given an opportunity to cross‑examine any such witness and nor the appellant was afforded any opportunity to produce any fitness in defence. On the basis of such enquiry report, the appellant was dismissed from service on 14‑6‑1981. Against his dismissal the appellant preferred a departmental appeal on 8‑8‑1981, which was rejected by the respondent‑bank after a period of about three years, vide letter, dated 11‑3‑1984. Thereafter, the appellant submitted his grievance petition before the learned Labour Court agitating therein that the proceedings against him, as also the dismissal order, were initiated and passed by an incompetent authority and that the domestic enquiry was also not conducted in accordance with law.

3. The respondent‑bank resisted the petition, mainly on the ground that the appellant being employed in a supervisory position and having administrative and financial powers, cannot invoke the jurisdiction of a Labour Court, hence his grievances petition was not maintainable. On merits, the respondent had denied all the allegations. In the Labour Court, the appellant filed his affidavit in evidence and was cross‑examined. While on the other hand, an affidavit in evidence of solitary witness of the respondent‑bank, namely, Syed Qamar Raza Jafri was filed and he was also cross‑examined.

4. I have heard the arguments of Mr. Salahuddin H. Ahmad the learned Advocate for the appellant and Mr. Hidayatullah, the learned counsel for the respondent‑bank and have perused the record and proceedings of the case. It is contended on behalf of the appellant that he was Manager of Sinjhoro Branch only upto 1975, and that from 1975 till the date of dismissal of his service, he was working only as an Accountant Inspection and was called as Staff Officer and his duties were of purely clerical nature as he used to maintain accounts and had no administrative or financial or hire and fire powers, therefore, he comes within the ambit of Standing Orders Ordinance. The relevant passage from his cross‑examination before the learned Labour Court is as under:‑

"It is incorrect that I was Manager of Sinjhoro Branch at the time of service of charge‑sheet. It is also incorrect that I held the last post in the Bank as Manager of Sinjhoro Branch. It is also incorrect that the allegations, which formed the basis of charge‑sheet, were levelled against me in the capacity of Manager of Sinjhoro Branch. I had advanced loans under my discretionary powers. I exercised my discretionary powers as Manager Sinjhoro Branch where I worked as such upto 27‑5‑1975. I was then transferred to Hyderabad Zonal Office as Accountant Budgetary Control .I was in supervisory position while working as Manager bet only upto 27‑5‑1975. It is incorrect that Bank has Statutory Rules of Service. It is incorrect that competent authority had issued charge‑sheet. Since witnesses were not produced before Enquiry Officer in my presence there was no occasion for me to cross‑examine them."

5. On the other hand in this regard, the only witness of the respondent‑bank in his cross‑examination has stated as under:‑

"I was appointed as Enquiry Officer by Vice‑President of Head Office as per letter, dated 11‑5‑1980 (Annexure C‑R/2). He was a delegated officer in its behalf. Applicant was not covered by category I (one). Again by referring relevant book I say that applicant was in category one. According to Annexure 'A' (C/1) only President is competent to dismiss officers of Grade One. Voluntarily states that Vice‑President who had appointed me as Enquiry Officer had been authorised by President on office note. I have not filed such office note in Court. I do not know if applicant did not act as Manager since 1975 till his dismissal. I also cannot say if Mr. Jafar Hussain and Peer Bux were posted as Managers of Sinjhoro Branch during 1975 to 1980 though they had remained Manager. In 1980 applicant was Staff Officer at Sinjhoro, but I cannot say if he also worked as Accountant and Accountant of Inspection after 1975. I also cannot say if applicant used to only maintain accounts during 1975‑80. I also cannot say if after his transfer from Sinjhoro Branch in 1975, he did not exercise administrative powers. 1973 Staff Rules must have been gazetted, but I am not sure if these were gazetted or not. I cannot say when competent authority came to know about the allegations of the applicant."

From the above evidence of the only witness of the respondent‑bank, it is crystal clear that he, being an Enquiry Officer, had no knowledge about the status of the appellant or the nature of his duties. There is nothing on record to prove that the appellant was not doing work of clerical nature. No witness was produced on behalf of the respondent bank, either before the Enquiry Officer or before the learned Labour Court, to rebut the claim of the appellant that he is a workman and was doing the work of clerical nature. Merely, a designation does not oust a person from claiming him as a 'workman' unless it is proved contrary to it. Reliance is placed on 1980 P L C 81, wherein it is held by Labour Appellate Tribunal, Punjab, in a case Allied Bank of Pakistan v. Suleman Hussain Shah that, "whether a person was a workman‑ determining factor Main and primary duties‑‑ Employee of Nationalised Bank‑Wage Commission not determining question whether or not particular category of employees were workmen because such status charged with posting‑‑Question thus to be decided under Labour Laws‑‑Person worked as Manager but on date of cause of action not posted as such but attached to Manager of a Branch‑‑Primary duties that of clerk and not of an officer without any subordinate or powers of hire or fire. Onus to prove such person as not a workmen, in circumstances, held, upon employer. Failure to discharge onus, held, raises presumption in favour of petitioner, and decision of Labour Court holding such person as workman in circumstances upheld by Tribunal." Admittedly, the appellant' was not afforded any opportunity to produce his witnesses in support of his claim that he is a workman and was doing the work of clerical nature. In view of these facts, I hold that the appellant was a workman and was doing the work of clerical nature, though designated as 'Manager/ Accountant Inspection', at the time of cause of action, therefore, he was entitled to invoke the jurisdiction of a Labour court and maintain his grievance petition under section 25‑A, I.R.O., 1969.

6. As regards the merits of the case, it is contended on behalf of the appellant that a time‑barred charge‑sheet based on false and baseless allegations, was issued to him on 13‑7‑1977, for a period prior to 1975 when he was posted at Sinjhoro Branch, and, again through a belated enquiry, vide an appointment letter of Enquiry Officer, dated 19‑8‑1980 he was condemned unheard and was very illegally dismissed from service, vide letter, dated 14‑6‑1981 on false, baseless and unproved allegations. The appellant contended that he had to his credit as un‑blemished record of long service of more than 18 years and he was discriminated at the time of dismissal as three other employees of the respondent‑bank, namely, Jaffar Hussain, Peer Bux Talpur and Muhammad Akram, who were also issued charge‑sheets along with the appellant for the same allegations and against whom similar enquiry was held by the same Enquiry Officer and a joint enquiry report was submitted by the said Enquiry Officer holding all the four employees including the appellant, guilty of the alleged misconduct, but except the appellant, all other three employees are still in service of the respondent‑bank. The appellant has pleaded that if he would have not been transferred from Sinjhoro Branch to Zonal Office, Hyderabad in 1975, then, he would have been in a position to get recovered the remaining loans granted by him under discretionary powers and even in that case no witness was produced by the respondent‑bank before the enquiry Officer to say in specific words that the appellant had granted the loans to bogus and unauthorised borrowers on forged and unreliable documents. It is further contended by the appellant that enquiry was perverse illegal and quite contrary to the principles of Natural Justice as it was simply in the shape of questions and answers' of the appellant only which is not permissible by any cannon of Law.

7. Mr. Hidayatullah, the learned counsel on behalf of the respondent‑bank has contended that the charges against the appellant have been fully established in the domestic enquiry held by the Enquiry Officer, Syed Qamar Raza Jafry and on the basis of his enquiry report, the appellant was rightly dismissed from service. He contended that neither the charge‑sheet, dated 13‑7‑1977, was time‑barred nor the domestic enquiry was held as late as in 1980. Further, he pleaded that the enquiry was perfectly in accordance with the requirements of Law and principles of natural justice and neither the appellant was discriminated nor any provision of Law was violated. However, Mr. Hidayatullah, the learned counsel for the respondent bank was unable to submit any cogent reason or ground and any relevant authority in support of his pleadings. In this regard, I would reproduce the relevant and material passage from the cross‑examination of the sole witness on behalf of the respondent‑bank, as under:‑

"It is correct that Messrs Jaffar Hussain, Peer Bux Talpur and Muhammad Akram were also charge‑sheeted along with applicant but though the charges were related to each other, each person was charged with separate allegation. It is incorrect that joint enquiry was conducted by me in respect of all four persons. It is also incorrect that I submitted a joint report against all four persons. Annexure R/7 which is my enquiry report is signed by me. I do not know if Messrs Jaffer, Peer Bux and Muhammad Akram are still in service of the bank. I myself did not supply copy of my enquiry report to the applicant. I am not aware if after my enquiry, the applicant was not given second show cause notice or chance of personal hearing. I did not cross‑examine the applicant but only recorded his statement in shape of questions and answers. I have not recorded the statements of Messrs Ali Bux, Rahim Bux, Muhammad Yousuf and Muhammad Saiful though they had been produced before me by the applicant in his defence and had only confirmed from them if their signatures appeared on Demand Promissory Notes and which they had confirmed and so I accepted the said documents as genuine. The applicant was accordingly absorbed from the said charge. I did not record statements of any witness from the side of prosecution. I do not know if there was no other allegation in respect of negligence except what have been made in the charge‑sheet. I am not aware of the dismissal of the applicant was made as per letter, dated 13‑6‑1981 Annexure 1 or that appeal of applicant was rejected, vide letter, dated 11‑3‑1984 (A/2) I produce enquiry letter, dated 19‑8‑1980 as Exh.A/11 and say it is signed by me. I also produced letter, dated 14‑5‑1984 as Exh.A/12, and say it was issued by Bank. It is incorrect that applicant did not commit any misconduct."

In view of the above admissions by way of evidence by the witness of the respondent‑bank, I held that the charges against the appellant could not be proved in any enquiry which was held quite contrary to the provisions of Law and contrary to the principles of natural justice. So, the enquiry is quite illegal and perverse. Therefore, the appellant was wrongly dismissed from service on the basis of such enquiry report.

8. For the above‑stated reasons, I set aside the impugned order and allow this appeal. The appellant is directed to be re‑instated in service forthwith with fifty per cent (50 ) back benefits.

A. A.

Appeal accepted.

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